Persimmon Homes (South East) Ltd., R (on the application of) v Secretary of State for Transport

MR JUSTICE SULLIVAN: In this application for judicial review the claimants challenge the defendant's "failure or refusal... to institute an appropriate mechanism for "continual and proactive review" of the policy "The Future of Air Transport" presented to Parliament by the defendant in December 2003 ("The White Paper") to reserve land for a wide-spaced runway at Gatwick Airport ("Gatwick"). The claimants are national house builders and members of a consortium which includes Crawley Borough Council and English Partnerships. The consortium is seeking planning permission to develop a large area of land to the northeast of Crawley ('CNES'). CNES is 153 hectares in extent, of which 120 hectares is owned or controlled by members of the consortium. It is bounded by the M23 to the east, by the railway line between Gatwick and Crawley stations to the west and by the A211 to the south. Gatwick lies to the northwest, the other side of the A23.

CNES is the principal structure plan housing allocation in the Crawley/Gatwick area. The consortium wishes to develop CNES as a new neighbourhood of 2,700 houses together with 1.3 hectares of employment land. Over a number of years the consortium has spent substantial sums of money in bringing CNES forward for development. A planning application for 2200 dwellings and substantial amounts of commercial and retail floor space was made as long ago as 1998. On 10th March 1999 the Secretary of State made an Article 14 direction, preventing Crawley Borough Council from granting planning permission without special authorisation. That Article 14 direction remains in force. It would appear that other directions have also been made. In a letter dated 12th January 2004, the government office for the South East (GOSE) said:

Before producing the White Paper the Government commissioned a wide ranging program of studies. One such study was the South East and East of England Regional Air Services Study (SERAS). The numerous documents which comprised SERAS were listed in Annex C to "The Future Development of Air Transport in the United Kingdom South East Consultation Document" (the first consultation document).

The first consultation document, which was published in July 2002, was part of an extensive consultation exercise. Consultees were asked to express their views on inter alia various combinations of airport development options; for example, two new runways at Stansted or one new runway at both Heathrow and Stansted. The first consultation document did not include any options in relation to Gatwick. On 26th November 2002 the decision to exclude Gatwick options from the first consultation document was quashed by Maurice Kay J (as he then was) in R (On the application of Medway Council and Kent County Council, Essex County Council and Mead and Fossett) v The Secretary of State for Transport [2003] JPL 583 (the Medway case) upon the basis that the decision was unfair and unreasonable.

In February 2003 a second edition of the consultation document was published which included options for providing either one or two additional runways at Gatwick, either alone, or in combination with the provision of additional runways at other airports. Two options were put forward for one additional runway at Gatwick: a close parallel runway separated by 385 metres from the existing runway, and a wide- spaced runway which would be built 1,035 metres to the south of the existing runway.

The capacity of Gatwick with the close parallel runway option was given as 62 mppa million passengers per annum (mppa) and its capacity with the wide-spaced runway option was given as 83 mppa.

In its representations the consortium objected to both of those options because, upon the basis of the noise predictions and noise contours that were then available, if either option was to be chosen it would render CNES unsuitable for development as a new neighbourhood because of the levels of aircraft noise from the expanded airport.

From the consortium's point of view the policy that was adopted in the White Paper in relation to Gatwick could hardly have been worse. The Government's principal conclusions are summarised in paragraph 11. 11 of the White Paper. They include the following:

The claimants' commenced these proceedings on 16th March 2004. In their grounds as originally formulated they challenged the lawfulness of the policies in the White Paper in relating to Gatwick. However, the claimants now accept that the Government was lawfully entitled to adopt a policy of keeping open the option of a wide-spaced runway at Gatwick after 2019, upon the basis that it was "sensible for the time being to retain and provide for an alternative option" to the construction of a third runway at Heathrow, as the second of two new runways that were to be provided in the South East, in the 30 year period to 2030, because the Government could not be "certain that at this stage, when or whether the conditions attached to the development of a third runway at Heathrow might be met" and bearing in mind "the uncertainties surrounding longer term forecasts" (the policy).

In their amended grounds, dated 9th December 2004, the claimants withdrew their challenge to the policy itself and instead challenged the defendant's failure or refusal "to institute an appropriate mechanism for continual and proactive review" of the policy. The White Paper states in paragraph 1.7:

Although the claimants contend that circumstances do now require a review of the policy, they no longer challenge the White Paper. They accept that it is for the defendant to decide whether or not circumstances are such as to require a review and, if so, what form that review should take. They recognise that there is no appeal on the merits against such decisions by the defendant. It is common ground that such decisions are reviewable only upon conventional public law grounds.

The claimants' challenge is now confined to the proposition that the defendant's failure or refusal to institute "an appropriate mechanism for continual and proactive review" of the policy is unfair or Wednesbury unreasonable. In support of this contention the claimants have produced a considerable amount of evidence. Since this is not an appeal on the merits, it would not be appropriate to rehearse that evidence in detail. In summary the claimants' contend that:

Both the extent and the significance of these changes are disputed by the defendant in certain respects. For example, the defendant says that the new noise contours, although not published until early 2004, were in fact available to the DfT at the time when the policies in the White Paper were being prepared. The defendant also questions the significance of CNES in terms of the regional supply of land for housing.

It is common ground that it is not for the Court to resolve such issues. They are pre-eminently matters of technical expertise and planning judgment. In considering whether the defendant's stance in relation to a review of the policy is unfair or unreasonable against this background, it is essential to establish precisely what his stance is. This proposition may seem somewhat obvious, but it is clear that the claimants have, at least until very recently, proceeded upon a misunderstanding of the defendants's position. It is unnecessary to explore that misunderstanding or the reasons for it. It is simply necessary to establish the defendant's position and then to consider whether that position is unfair and/or unreasonable.

In a letter before action dated 3rd March 2004, the claimants asked a number of questions. Questions 3 and 4 were as follows:

At this stage the claimants were questioning the policy itself: the underlying basis for preferring a wide-spaced rather than a close parallel runway, and were contending that more work needed to be done on the latter option before a policy decision could be made as to which runway option should be chosen at Gatwick.

On 12th March the Treasury Solicitor replied. Paragraph 14 of that letter said:

Pausing there, whatever the claimants may have thought at an earlier stage, paragraph 1 of this letter makes it clear that the defendant:

The claimants have advanced those arguments in their evidence served during the course of this litigation. The defendant has considered that evidence and, as explained in the evidence served on his behalf, has not been persuaded that there is any need at present to review the policy. This consideration has taken place in the context of adversarial litigation which is perhaps not the most conducive atmosphere in which to weigh the merits of arguments such as those advanced by the claimants. In particular the claimants' arguments and the defendant's responses thereto necessarily emerged piecemeal by way of responses, further responses and yet further ripostes to the other party's evidence. However unsatisfactory this process may have been, it remains the fact that the claimants are able to put the whole of their case in written representations to the defendant and, if that is done, on ordinary public law principles the defendant will have to consider whether that information justifies an early review of the policy.

On behalf of the claimants Mr Steel QC submitted that the opportunity to make written representations to the defendant was inadequate in the particular circumstances of this case. Fairness required that some form of hearing or inquiry should be available, so that the evidence could be tested, by cross-examination and/or by questioning from the person conducting the hearing or inquiry. A forum in which the evidence could be tested was necessary, because there was a clear conflict of expert opinion between Mr Spragg of SAL Consultants, instructed on behalf of the claimants and Mr Evans of Halcrow Group Limited (Halcrows) who advises the defendant on (inter alia) the technical aspects of runway capacity. In summary Mr Spragg and Mr Evans disagree as to the capacity reasonably to be expected at Gatwick with the addition of a "hybrid" runway. The former contends that its capacity would be similar to the capacity with the addition of a wide-spaced runway, 82 - 83 mppa, the latter maintains that its capacity would be between 62 - 67 mppa.

There is no doubt that this difference is of considerable significance. If a new runway at Gatwick is to be a "suitable alternative option" to Heathrow, the airports's potential capacity must match the capacity offered by an additional Heathrow runway, in case the "stringent environmental limits" cannot be met at the latter airport.

Notwithstanding this difference of professional opinion, I do not accept the claimant's submission that fairness requires the defendant to make arrangements for some form of extra statutory hearing or inquiry. In fact (see below) the claimants are able to present their arguments at an inquiry. But even if such an opportunity was not available and they were confined to making written representations, I do not consider that this would be either unfair or unreasonable. The policy in question was made following an extensive public consultation exercise and the receipt of written representations from numerous parties. Although the claimants in other proceedings in which I have reserved judgment have challenged the lawfulness of certain policies in the White Paper, the claimants in these proceedings accept that the defendant could lawfully make the policy, after considering written representations in the consultation exercise. In those circumstances, it is not the least unfair or unreasonable for the defendant to say: if you wish to persuade me to review that policy, you may seek to do so by making written representations. I accept that in certain circumstances fairness may require a hearing or inquiry. Mr Steel relied upon the decision of Webster J in Binney & Anscombe v the Secretary of State for the Environment and the Secretary of State for Transport (1983) JPL 871. But the circumstances in that case were wholly different. The defendant's decision not to hold an inquiry was made in the context of a statutory framework, within which, if there were objections to a highway proposal, the holding of an inquiry was the norm: an inquiry would be held unless the Secretary of State was satisfied that it was unnecessary. In the present case, not merely is there no statutory framework for reviewing policies such as those in the White Paper, but it would be most unusual (and Mr Steel was not able to point to any precedent) for there to be a hearing or inquiry as part of such a review process. In any event, this discussion at the adequacy of written representations is academic because the claimants are able to ensure that their case is presented at an inquiry, if that is their wish. The Article 14 directions merely prevent the local planning authority from granting planning permission. They do not prevent the claimants from appealing against the non-determination of the 1998 application, or any new application that the consortium may choose to make.

At such an inquiry the claimants would be able to deploy in as much detail as they felt appropriate their arguments as to why planning permission should be granted for a new neighbour hood development at CNES. The claimants accept that, in so far as those arguments might well include an argument that on balance, a hybrid runway option, even if it had a lesser capacity than a wide spaced runway, should be kept in reserve as a "fall back" for Heathrow, because, for example, such a hybrid option would require less land take, have less noise impact, would have other environmental benefits, would remove blight from CNES and would enable the early development of a new neighbourhood to proceed, a planning inquiry is not merely an appropriate forum for such arguments but the appropriate forum for such arguments.

Since that forum is available to the claimants, why is it the defendant's approach is unfair or and/or unreasonable? In answer to this question Mr Steel advanced three reasons. Firstly, he submitted that fairness required the defendant to commission work from BAA and the CAA and within the Department of Transport, principally, but not exclusively relating to the potential of a hybrid runway option. Given the continued blight on the consortium's land, he submitted that fairness required the defendant to do all that he reasonably could to mitigate such blight. The defendant was under an obligation to inform himself of the relevant facts and could only do so by commissioning the necessary research from those bodies who had a particular expertise such as BAA and the CAA.

I do not accept that submission. Mr Steel fairly acknowledged that he was not able to point to any authority which supported the proposition that, having lawfully adopted a particular policy, fairness required the decision taker not merely to be prepared to consider representations from third parties that the policy should be amended in the light of changed circumstances, but to go further, and himself make arrangements for work to be undertaken by or on behalf of his department in order to ascertain whether or not there had been any change of circumstances which would justify making a change to the policy. As a matter of principle, it is difficult to see how such a duty could exist. While no doubt, as a matter of good administrative practice, government departments can be expected to take steps to keep abreast of changes which might affect Government policies, that is a far cry from the proposition that in respect of a particular policy there is a duty to commission particular research. When one turns to the facts of this case, the policy in question was adopted after a lengthy process of study and consultation. The defendant has considered the material produced by the claimants in these proceedings and placed it before the department's technical advisers, Halcrows. In summary, Halcrows' advice is that the material produced by the claimants does not materially alter the basis upon which the policies in the White Paper were prepared. The claimants clearly disagree with that assessment but it is impossible to say that the defendant was not entitled, in the light of that advice, to conclude that he would not commission any further work. The question is not whether the claimants feel that more investigations would be helpful, but whether the defendant's stance can be said to be unfair or irrational. On a practical note, the claimants have access to technical expertise. Their consultants have already been able to obtain a considerable amount of information (see above). If the claimants consider that further work would be helpful, there would appear to be no reason why they could not commission further work, perhaps from BAA or the CAA, if those bodies are willing to undertake it on a commercial basis.

Secondly, Mr Steel submitted that the defendant should give an assurance that, at a planning inquiry, the issue of the capacity of a second runway at Gatwick and the need for the reservation of land for such a runway would be able to be 'tested'; and that if it was found that a hybrid runway would have a smaller capacity than a wide-spaced parallel runway, a balancing exercise would be carried out in which the disadvantage of any shortfall in capacity would be balanced against the planning advantages contended for by the claimants.

Given the terms of the second paragraph of the letter from the Treasury Solicitor, dated 22nd October 2004, set out above, I do not understand why the claimants consider that such an assurance is necessary, even if it would have been appropriate to seek such an assurance from the defendant, whose department would be one of the parties at an inquiry arranged by the planning inspectorate, and where the inspector conducting the inquiry would be reporting to the office of the Deputy Prime Minister and First Secretary of State.

It will be remembered that the letter of 22nd October 2004 was written at a time when the claimants were still challenging the policy itself, and contending that more work was required on developing the close parallel runway option. Since the letter expressly stated against that background that it would be open to the claimants to make a case that the need for a wide-spaced runway was outweighed by other relevant factors and the proposed development at CNES should be granted planning permission, notwithstanding that this would frustrate government policy, a fortiori if the claimant's case is now that a hybrid runway would meet the objectives underlying the policy (by a providing an adequate fall back for Heathrow) so that government policy would not be frustrated, such a case could be made at a planning inquiry. It is not in the least unusual for appellants (or for applicants in the case of inquiries into called applications as would be likely in relation to any application to develop CNES by the consortium) to argue that planning permission should be granted for their proposed development because either (a) it does not conflict with the objectives underlying government policy, and therefore would not frustrate government policy, and/or (b) in so far as those objectives are not fully met the disadvantages of not doing so are outweighed by other planning advantages.

The claimants' case, in respect of a hybrid runway, at least as articulated during the course of these proceedings, would be no different in this respect. The claimants acknowledge that they would be able to deploy their case at a public inquiry. Their real concern appears to be that "the right parties" (the Department for Transport, BAA and the CAA) might choose not to attend the inquiry, so that the issue of runway capacity could not be fully tested before the inspector. The Department for Transport, BAA and the CAA will undoubtedly be notified of any inquiry, if not by the local planning authority as part of the normal pre-inquiry procedures, then by the claimants themselves. If an inquiry was arranged those bodies would then be able to decide whether, and if so how, they wished to participate, for example by making written submissions or by providing a witness with or without representations by an advocate. It is quite unrealistic to seek 'assurances' at this stage as to their future conduct, even if it was in the defendant's power to give such assurances in relation to an inquiry arranged by the planning inspectorate, when the detail of the claimants' case is not known. At this stage it is sufficient to say that there is no reason to suppose that bodies such as BAA or the CAA would not act in a reasonable and responsible manner in deciding how to respond to a notification that there was to be a public inquiry into the consortium's proposals for the development of CNES. If they were unwilling to participate in a planning appeal, it is difficult to see why they would be any more willing to participate in some other form of non-statutory inquiry.

The claimants have not given details of what enquiries they have made of bodies such as BAA and the CAA, but there is a letter from BAA in the claimant's evidence in which BAA helpfully responds to a number of questions that have been posed by the claimants.

In summary, if the claimants feel that written representations to the defendant are inadequate, then they are free to present their case at a planning inquiry. Mr Steel emphasised the urgency of the situation: because of the blighting effect of the policy, alternative housing sites will have to be identified if CNES is not to proceed. GOSE has asked the relevant planning local authorities to begin the process of identifying other sites as contingencies, but if the position in relation to CNES is not resolved soon, those other sites (less desirable in planning terms in the view of consortium and the local planning authorities) will have been identified and the opportunity to provide a new community at CNES will have been lost, if not forever, then for a very considerable period of time.

I have the greatest sympathy for the predicament in which the claimants find themselves but there is nothing to suggest that the need for an early resolution of the issues surrounding the development of CNES is not best addressed through the statutory planning process. In particular, so long as there continues to be a real possibility that the capacity of a hybrid runway at Gatwick would not be quite as much as that of a wide spaced runway, a planning inquiry is the only forum in which the disadvantage of any shortfall in capacity could be balanced against other planning advantages.

Thus, in considering what mechanisms for 'review' are available to the claimants, they have the opportunity to put their case either by way of written representations to the defendant or at a planning inquiry. I am unable to see any unfairness and/or unreasonableness in that position.

Mr Steel's third complaint did not appear in the amended grounds or the claimant's skeleton argument. He submitted that it was unfair for the defendant to use the same consultants (Halcrows) whose conclusions were being challenged by the claimant's consultants to advise him whether a review was necessary. He submitted that there should be 'independent' consideration of that issue. I do not understand, much less do I accept, this criticism. As part of their evidence the claimants referred to advice which they had obtained from Mr Spragg. The defendant asked Halcrows for their view on this evidence and produced a letter from Halcrows in his evidence in reply. This resulted in a witness statement from Mr Spragg, explaining why he disagreed with Halcrows' views. The defendant put that further evidence before Halcrows and they replied in a further letter, in essence, maintaining their earlier position.

Since the defendant was presented with technical evidence, he cannot be criticised for referring it to the advisers who have been providing the department with technical advice throughout the SERAS process, and the preparation of the White Paper. Indeed, he might have been criticised by the claimants if he had failed to obtain such technical advice. There is no suggestion that Mr Evans has done anything other than give his own independent professional view. The claimants have seen the technical advice on which the defendant has relied for the purpose of defending these proceedings and have had ample opportunity to comment upon it. Indeed, both parties have had a number of 'bites at the cherry' in evidential terms.

I can see no reason why the defendant should be required to seek other 'independent' professional advice merely because Mr Evans has not agreed with Mr Spragg. Mr Steel accepted that the defendant could not be required to keep on instructing consultants until one could be found who did not disagree with those instructed by the claimants.

I would add this observation: although Mr Evans and Mr Spragg disagree, the tenor of their letters is positive and constructive in both cases and it is possible that, freed from the time constraints and other pressures of adversarial litigation, they might, in discussion, be able to reduce their differences, but sadly that is not a course which has pursued to date. I sympathise with the claimants position, so near and yet so far from obtaining planning permission for the development of CNES, but for the reasons set out above their complaint that there is no "mechanism for review of the policy" is not well-founded. It follows that this application must be dismissed.

would add this observation: although Mr Evans and Mr Spragg disagree, the tenor of their letters is positive and constructive in both cases and it is possible that, freed from time constraints and other pressures of adversarial litigation, they might, in discussion, be able to reduce their differences, but sadly that is not a course which has pursued to date. I sympathise with the claimant's position, so near and yet so far from obtaining planing permission for the development of CNES. But, for the reasons set out above, their complaint that there is no "mechanism for review of the policy" is not well-founded. It follows that this application must be dismissed.

MR DRABBLE: On that basis I ask for the costs of the Secretary of State my Lord. I should point, as had been pointed out to me overnight, the first Secretary of State has been joined in these proceedings as an interested party. My Lord, no application for costs is made on his behalf on the understanding, which I think must be correct, that the witness statements filed by officers of the ODPM, on behalf of the Secretary of State for Transport, are part of the Secretary of State for Transport's costs. I just put that on the record. I apply for the Secretary of State's costs.

MR STEEL: I cannot resist the application. The subdivision of it is for another day and time. As far as the points made by my learned friend, I cannot resist that either. It is obviously sensible all be regarded as from one person, as it were, notwithstanding two applications being made. I do not resist that at all.

MR JUSTICE SULLIVAN: So, the order is that the application is dismissed. The claimants are to pay the defendant's costs (those costs to include evidence provided by the interested party). Such costs to go for detailed assessment unless otherwise agreed, or words to that effect any way. Is there anything else?

MR STEEL: There is one matter that arises from this. My Lord, may I first of all thank my Lord for the careful judgment that has been given. And also it will clearly be looked at in some detail and also with some due consideration by my clients in due course. No doubt substantial weight will be placed upon the various observations my Lord by all parties concerned. We are most grateful for the way in which that has been putting together.

However, as this is the appropriate time to ask for any leave to go to a higher place.

MR JUSTICE SULLIVAN: You want to tell me I have got it wrapped round my neck the wrong way.

MR STEEL: I was going to try to urge my Lord, as is my bound duty, that in respect of the points concerning fairness, I believe that, I would wish to confine myself on these matters to the first of these, as to whether or not there is any continuing duty in fairness upon the defendant Secretary of State to ensure that no land is blighted more than is reasonably necessary to carry into effect his airport's policy and whether he is under a further duty to ensure that active steps, those are reasonable steps are taken by him to ensure that such land taken and blighted is in fact minimised in both area and time.

My Lord has given his views with respect to this point. It is a matter where, as I freely admitted, there is no authority upon the point. It is a point of importance in planning law because it does arise from a White Paper policy. Obviously it could arise in respect of other matters not just in relation to airports but off-site land, as it were, is blighted for a continuing period. It does arise in respect of a fall back position. As I submitted in the course of argument, it is the first time that I am aware that a policy in a White Paper has land at another place (here Gatwick Airport) as a contingency or fall back, in case a national policy in relation to land (at Heathrow in this case) is not able to be brought forward. In other words, there has been considerable difficulty that persons may be finding themselves in, we claim we find ourselves in simply the court lies there in relation to developing or doing other things in terms of off-site land. There is no - I think this is generally accepted - from parts of my Lord's judgment - there is no compensation. There is no right here, unlike the land which is actively and fully safeguarded or to be safeguarded where blight notice can be served. There is no way forward in terms of causing work to be done and therefore the determination as to whether or not there is such a duty is a matter of general importance. It is not as if my clients are without funds. The matter is of a general importance because it affects not just those with funds, such as a consortium, with considerable resources, but also persons and bodies who would have to set themselves up with aircraft, airport and aviation consultants to be able to put such written submissions, alternatively at a planning inquiry, as may be necessary so as to resolve the position. It is therefore is a point which, even though my Lord clearly has come to a contrary conclusion, I say in fairness, another body might conclude, and we say it is reasonable argument to be determined by the Court of Appeal, that there may well conclude that fairness justifies, in the circumstances of the case, that there is an obligation and continuing duty for the Secretary of State to carry out that work, and not for it to be a matter imposed upon those blighted who received no benefit from it.

MR JUSTICE SULLIVAN: Thank you very much Mr Steel. Mr Drabble, I do not need to trouble you. Thank you very much. I hope you will not think it discourteous, Mr Steel, if I say for the reasons set out in the judgment, I think if you want to persuade the Court of Appeal to give you permission you obviously have a chance to do so. But, for my part, I do not think there is a real prospect of success.

MR STEEL: That is understood.

MR JUSTICE SULLIVAN: I refuse permission.

MR STEEL: There are two very minor points arise from the judgment, very minor indeed, slips of the tongue, if I may call it that. Forgive me for rising at all.

MR JUSTICE SULLIVAN: It is better to sort it out now. Where?

MR STEEL: The letter, it was my notes and three page from the end, it was after you went to second point put forward at a public inquiry the defendant's issue of wide spice be able to tested. Very soon after that, my Lord referred to the letter of 22nd November 2004, of course it was 22nd October.

MR JUSTICE SULLIVAN: We will correct that shorthand writer, thank you.

MR STEEL: We are getting even more minor GOES, it was GOSE as it is awfully called.

MR JUSTICE SULLIVAN: I am sure the shorthand writer will spot that when it comes up. Sort that one too, please.

MR STEEL: The only other one is even more minor.

MR JUSTICE SULLIVAN: Go on, Mr Steel, tell us what it is.

MR STEEL: A silk has to earn his keep by correcting judges over the most minor points. I think it is so minor I cannot remember what it is with all due respect.

MR JUSTICE SULLIVAN: I have got some notes for the shorthand writer so you do not hae to take the entire bundles with you. I have taken on board, Mr Drabble, what you said about practicalities of handing down the judgment in the other two cases. I have received an email in fact, I think from Essex/Hertfordshire dealing with -- it might be from the London Boroughs. I do not know, I was not really concerned with the detail at this stage as to who ought to be on the list, yes. But, frankly there is not any urgency at all. What I am going to do is, when we get nearer the time, which I am not sure quite when, I will ask my clerk to notify people and people then can make representations and so forth. But there is no need to get into a flurry about making them at this stage.