West Midlands International Airport Ltd v Secretary of State for Communities and Local Government & Ors

Introduction. The Claimant, West Midlands International Airport (“WMIAL”) is the owner and operator of Coventry Airport (“CVT”). By its claim in these proceedings WMIAL applies pursuant to section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash a joint decision of the First and Second Defendants, the Secretary of State for Communities and Local Government and the Secretary of State for Transport (“the Secretaries of State”), made by letter dated 14^th June 2007, dismissing a planning appeal by WMIAL (“the NPT appeal”) and refusing planning permission.

The NPT appeal was brought under section 78 of the 1990 Act against the failure of the Third Defendant, Warwick District Council (“WDC”), to determine within the prescribed period WMIAL’s application for planning permission for the construction of a new 10,250m² passenger terminal (“the NPT”) at CVT, to cater for up to 2 million passengers per annum (“mppa”), together with associated car parking (3,825 spaces), expansion of the aircraft apron (15,875 square metres) and improvements to the existing access at Siskin Parkway West, Coventry. The decision letter (“the NPT DL”) was issued pursuant to and following upon the Secretaries of States’ consideration of a report (“the NPTIR”) by their duly appointed Inspector (“the Inspector”) dated 12^th January 2007, following the public local inquiry he conducted in connection with the NPT appeal that took place intermittently between 10^th January 2006 and 31^st July 2006 (“the NPT inquiry”).

Under section 288 of the 1990 Act, any person aggrieved by a decision of the Secretary of State may apply to the High Court to question the validity of that decision on the grounds that: (i) the decision is not within the powers of the 1990 Act, or (ii) that any relevant requirements have not been complied with in relation to that decision. It is common ground that section 288 of the 1990 Act thus enables the person aggrieved to challenge the decision in question on normal administrative law grounds: see Seddon Properties Ltd ~v~ Secretary of State (1978) JPL 835, per Forbes J. This includes a failure to have regard to material considerations, taking into account irrelevant considerations, failing to comply with the requirement to give proper and adequate reasons that are clear and intelligible and that deal with the substantial points raised, and acting irrationally.

Broadly stated, WMIAL’s challenge to the Secretaries of States’ decision in this case is founded on the proposition that the NPTIR was “riddled with many manifest errors and is characterised by repeated and countless failures to deal properly or at all with the extensive evidence that was heard at the Inquiry”: see paragraph 2.3 of the Details of Claim. It is alleged that the many types of error in the NPTIR include the following (see paragraph 2.4 of the Details of Claim):

“(i)

Repeated failures to record the evidence heard at the inquiry (whether through written proofs, evidence in chief, cross-examination or re-examination) accurately, fully, fairly, or (in some instances) at all;

(ii)

Repeated failures to deal with concessions made by parties on matters of fact, policy or expertise, or to provide an explanation as to why the Inspector took a contrary view to such concessions or common ground;

(iii)

Selective analysis of the evidence or answers given, without dealing with the clear countervailing evidence to the contrary, or giving any satisfactory reasons or explanation for not dealing with that countervailing evidence;

(iv)

Inherent inconsistencies of approach in the Inspector’s analysis which reveal that the Inspector has failed to take all relevant matters into account, or has taken into account irrelevant matters; and

(v)

Failing to give proper, adequate and intelligible reasoning.”

On behalf of WMIAL, Mr Village QC readily acknowledged that the decision under challenge in these proceedings is, of course, the decision of the Secretaries of State, not that of the Inspector. However, he submitted that the Inspector’s errors are fundamental and go to the very root of his “flawed consideration of the appeal proposals” and, thus, “inevitably, infect and fatally undermine the consideration by the Secretaries of State of the appeal in reliance upon the (NPTIR)”: see paragraph 2.5 of the Details of Claim.

In the Details of Claim, WMIAL has identified and particularised a total of 19 grounds of challenge in support of its case as outlined above. However, at the outset of the hearing before me, Mr Village confirmed that ground 18 was no longer being pursued. I will give details of the remaining 18 grounds when I come to deal with them later in this judgment.

The Relevant Legal Principles. Before outlining the factual background, it is convenient to set out a number of the principles which it is common ground are applicable to the issues raised by this case.

An application under section 288 of the 1990 Act is not an opportunity to reargue the merits of the failed planning appeal. Matters of judgment are for the decision-maker, unless the judgment reached is indefensible: see the judgment of Sullivan J. in Newsmith Stainless Ltd ~v~ Secretary of State for Environment, Transport and the Regions (2001) EWHC Admin 74 (hereafter “Newsmith Stainless”), where he stated the principle in the following terms at paragraphs 6 to 8:

“6.

An application under section 288 is not an opportunity for a review of the planning merits of an Inspector’s decision. An allegation that an Inspector’s conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.

7.

In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for the applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example, is the building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

8.

Moreover, the Inspector’s conclusions will invariably be based not merely on the evidence heard at an inquiry or an informal hearing, or contained in written representations, but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task. …”

In order to have regard to a policy, the decision maker must have interpreted it properly. If the decision maker fails properly to understand the policy, then the decision is as defective as if no regard had been paid to the policy: see Gransden (EC) & Co Ltd ~v~ Secretary of State for the Environment (1986) JPL 519, per Woolf J. However, it is important to bear in mind that the meaning and application of planning policy is a matter for the decision maker, provided that the meaning is one that can be properly given to the policy in question: see Cranage PC and others ~v~ The First Secretary of State and others (2004) EWHC 2949 (Admin).

When weighing up evidence in a planning decision, the Inspector and/or the Secretary of State is not bound to accept the evidence of expert witnesses, even when there is no contrary evidence: see Kentucky Fried Chicken [GB] ~v~ The Secretary of State for the Environment [1977] 245 EG 332, where Lord Widgery CJ stated as follows:

“…counsel …(submitted) … that the appellants having called high-level experts who had expressed opinions about this, the inspector, without any evidence to contradict those opinions, was bound to accept them.

That just is a complete and total fallacy. The inspector (who is a man of experience, and, above all, specialised qualifications, who is sent to assess a problem of this kind) is supposed to use his own knowledge and, if I may say so, commonsense as well. He is intended to use his commonsense and he is not bound to accept the evidence of experts. It is exactly the same situation that justices and juries find themselves in when experts of great distinction go into the witness box before them. The inspector is no more bound to accept the evidence of the experts than are they.”

So far as concerns the adequacy of the reasons to be given for planning decisions, the reasons must be understood in the context of a decision written for knowledgeable parties and should enable the reader to know what conclusions the decision maker has reached on the principal controversial issues in dispute: see South Bucks District Council ~v~ Porter (No 2) (2004) 1 WLR 1953 at paragraph 36, where Lord Brown summarised the law in the following terms:

“36.

The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

The Factual Background. CVT is situated 4.5km southeast of Coventry city centre and 6km from Coventry railway station. It lies wholly within the administrative area of WDC as the local planning authority and Warwickshire County Council (“WCC”) as highway authority. The administrative boundary between WDC and Coventry City Council (“CCC”), the neighbouring unitary authority, runs around the northeast and northwest boundaries of CVT. The runway runs southwest to northeast and can accommodate planes like 737s and 757s, subject to some distance restrictions on how they can fly. However, CVT is not an airport that can accommodate planes like 747s.

It is generally accepted that CVT comprises the following three main areas.

CVT is a long established airport, which predates the introduction of the planning system in 1947. An airfield in this location was first opened in 1936 as part of the Armstrong Whitworth aircraft factory, a factory that did not close until 1965. There were (until relatively recently and in circumstances that are explained below) no previous controls that existed over its aviation activity. It was an entirely unregulated airport and thus there was an absence of any controls over the number of air movements that could occur, or over the operating hours of the airport, or over the types of aircraft that could fly in and out, nor was there any control over the frequency of those movements: see paragraph 10.42 of the Warwick District Local Plan.

In the 1950s CCC bought the freehold of the airfield and then developed it into a municipal airport. Regular passenger flights commenced from CVT in the early 1950s, with scheduled services to the Channel Islands and Brittany. In 1964 the scheduled services were expanded by the introduction of passenger and vehicle-ferry flights to Calais, Le Touquet and Ostend, with services to the Isle of Man and Blackpool added in 1966. By the summer of 1984, CVT was handling 86 flights and 4,000 passengers each week. These services culminated in the 1990s with Ryanair offering low-cost schedule airline operations to the Republic of Ireland. At this stage the passenger operations were run from Airport West.

In 1985, the established freight airline Air Atlantique moved its operations from Stansted airport to CVT. Royal Mail Parcels began operating from CVT as a “hub” airport in 1989, resulting in Parcelforce’s “superhub” development operation commencing in 1998.

CVT was originally a local authority owned airport. It was previously owned by the predecessor authority of CCC and then by CCC itself. The freehold interest of the airfield is still owned by CCC. Under the Airports Act 1986 (“the 1986 Act”), local authorities became obliged to divest themselves of municipal airports where turnover exceeded £1 million in two out of three consecutive years. CVT fell within the scope of the 1986 Act and, in 1998, CCC sold a 150 year lease of CVT to WMIAL which was, at that time, a member of the Air Atlantique group of companies. Furthermore, since CVT is a “relevant airport” for the purposes of the 1986 Act, its operational land enjoys the benefit of additional permitted development rights under Part 18 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (“the GPDO”), which is concerned with Aviation Development. Class A deals with development at an airport, paragraph A of which grants planning permission for: “The carrying out on operational land, by a relevant airport operator or its agent, of development (including the erection of an operational building) in connection with the provision of services and facilities at a relevant airport”. This grant of permission for the construction of buildings and changes of use, is subject only to the limitations contained in paragraph A1 of Part 18 of Schedule 2 and the effect of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the EIA Regulations”): for the relevant resulting limitations, see paragraph 24 below.

The intended development of CVT by its expansion as a passenger airport has long been known and formulated in the public domain. In the late 1980s to early 1990s, CCC commissioned a masterplan that identified Airport South as the appropriate location for a new passenger terminal, with new aircraft aprons and with the land to the east and south proposed as a trading estate and business park.

Pursuant to the masterplan, a planning application was submitted and in April 1990 WDC granted outline planning permission for airport related development on the land around Airport South and comprising Airport South (“the Airpark Permission”). The Airpark Permission included outline consent for the construction of a new passenger terminal at Airport South. There was no restriction on the number of passengers that the new terminal could handle or on the number of annual transport movements through the airport. In December 1991 a further planning permission was granted by WDC for the construction of an aircraft parking apron and taxiway link in the vicinity of the location for the proposed new terminal.

On 7^th April 1993 WDC granted an extension of time in which to implement the Airpark Permission and granted a further extension of time on 23^rd March 1998.

In the meantime, Parcelforce relocated its activities from Airport West to a larger parcel sorting and distribution centre situated in an area of land to the west of the proposed location for the permitted passenger terminal at Airport South. In conjunction with this relocation and in anticipation of the construction of the new passenger terminal at Airport South pursuant to the Airpark Permission, on 28^th May 1998 WMIAL entered into a section 106 agreement which provided for certain limitations on the activities that could take place at specifically defined locations at Airport West (“the 1998 section 106 agreement”). The effect was to restrict the weight of aircraft operating in certain areas at Airport West, to limit the use of the land adjoining the Oak Public House in Baginton to landscaping, to close certain access points, to limit the general permitted development rights for small parts of Airport West and to impose some restrictions on engine testing areas. However, the remainder of Airport West and the airport remained essentially unrestricted and no restrictions were placed on CVT generally or upon the new passenger terminal building that was permitted under the renewed Airpark Permission.

In July 2002, an application was submitted for a yet further extension of time of the extant outline permission for the passenger terminal at Airport South. However, following discussions between WMIAL and WDC, WMIAL was persuaded to submit a fresh planning application to be accompanied by an Environmental Statement on the basis that the planning history and the established principle of the new passenger terminal would be taken into account. As a result, WMIAL withdrew its application for an extension of time and, in March 2003, submitted a new full planning application for a new passenger terminal building to accommodate up to 2 mppa (“the 2003 planning application”).

In the meantime, pending construction of a new passenger terminal at Airport South, passenger services at CVT had fallen somewhat into decline. Whilst awaiting determination of the 2003 application, WMIAL was anxious to revitalise passenger activities at CVT as the result of the interest of Thomsonfly who wished to commence a low cost airline operation from CVT.

Accordingly, WMIAL agreed to construct an “Interim Passenger Facility” (“the IPF”: in effect, a temporary passenger terminal) at Airport South by exercising its permitted development rights under Part 18 of Schedule 2 to the GPDO as a relevant airport operator. As already indicated (see paragraph 17 above), under these provisions WMIAL enjoys extensive permitted development rights for the construction and change of use of certain buildings. These include the right to erect a passenger terminal building up to 500 sq. metres in size, provided that the area of works involved in the provision of such a building is less than 1 hectare.

Following a period of what WMIAL regarded was a process of consultation with WDC about this proposal, in late 2003 WMIAL began construction of the IPF at Airport South, consisting of a modular building (i.e. Portacabins), in order to get Thomsonfly going. By March 2004, work on the IPF was completed and the operation of low-cost schedule flights from it commenced.

Unfortunately, WDC objected to the use of the IPF and, on 29^th April 2004, it served enforcement notices on WMIAL alleging that the IPF and the associated works fell outside the scope of WMIAL’s permitted development rights on the basis that: (i) the IPF was more than 500 square metres in floorspace, (ii) that the necessary prior consultation with WDC had not taken place and (iii) that the development was Schedule 2 EIA development falling outside the GPDO.

WMIAL duly appealed against the enforcement notices pursuant to section 174(2) of the 1990 Act, contending (inter alia) that (i) there had been no breach of planning control, (ii) that even had any breach occurred, the steps required of removing the buildings and cessation of the operations were excessive and (iii) in any event, planning permission should be granted if required. For its part, WDC issued proceedings in the High Court, seeking an injunction under section 187B of the 1990 Act. However, in the event, Gloster J struck out these proceedings as an abuse of process.

Accordingly, by mid-2004 the position was this: (i) CVT was being used by Thomsonfly for its scheduled passenger operations from the IPF together with associated land for car-parking, (ii) WDC had issued enforcement notices against that use and these notices had been appealed by WMIAL – which appeals were due to be heard at a local public inquiry and (iii) WMIAL had an outstanding application for planning permission for the construction of a new permanent passenger terminal at Airport South which remained undetermined (the 2003 planning application).

On 11^th September 2004 the 2003 planning application was reported to WDC’s Planning Committee. The Planning Officer’s report to the Committee advised that: “The principle of the development of a passenger terminal at Coventry Airport is considered to be in accordance with the policies of the development plan and other material considerations, notably national and regional air transport policy.” WDC’s planning officers went on to conclude that the proposal for a passenger terminal for 2mppa, subject to the proposed section 106 obligations and the introduction of significant controls over the activities at CVT for the first time was in accordance with relevant policy. The only reason for the refusal of planning consent identified by the officers related to an objection from the Highways Agency, who was concerned about the operation of the Tollbar End Roundabout for such activity. In the event, the Planning Committee refused planning permission for that reason and for four additional reasons relating to alleged noise and air quality effects, effects on birds and effects on the character of the wider landscape and towns and villages on the flight paths.

In due course, WMIAL resolved the Highways Agency objection by virtue of a scheduling agreement and improvements to the Tollbar End Junction roundabout and the additional grounds for refusal were all subsequently withdrawn by WDC.

Following the refusal of permission in respect of the 2003 planning application, WMIAL submitted an appeal and also a further planning application for the NPT in November 2004 (“the 2004 planning application”). The 2004 planning application still sought permission for a passenger terminal building to accommodate 2mppa, but it made various changes to the proposed buildings, to accommodate more retail and additional space, and to the location of the proposed car-parking.

By this stage there were two outstanding planning appeals, i.e. the appeal against the enforcement notices in respect of the IPF (“the IPF appeal”) and the appeal against the refusal of planning consent with regard to the 2003 planning application (this appeal later formed part of the NPT appeal before being withdrawn, see below). Although WMIAL sought to have both appeals heard together, because it considered that most of the principal issues were common to both appeals, the Planning Inspectorate decided that the appeals should be heard separately.

So it was that the public local inquiry relating to the IPF appeal took place between 1^st February and 19^th July 2005 (“the IPF inquiry”), against the backdrop of an operating airport in which the IPF was being used for the Thomsonfly flights. The IPF Inspector’s resulting report (“the IPFIR”) was submitted in December 2005 and the decision letter of the Secretaries of State (“the IPF DL”) was issued on 6^th April 2006, after the commencement of the NPT inquiry. As already stated, the NPT inquiry was subsequently heard intermittently between 10^th January and 31^st July 2006.

Meanwhile, at a meeting of WDC’s Planning Committee on 4^th July 2005, WDC resolved to support the planning merits of the IPF, subject to the provision of an adequate mitigation package, and resolved to grant planning permission, subject to the terms of the draft section 106 agreement that had been presented to the IPF inquiry. As the IPF Inspector observed in paragraph 1.11 of his report: “The local planning authority is now therefore to be considered a supporter of the planning merits of the IPF and its case is reported as such in Section 7 below.” In paragraph 1.10 of his report the IPF Inspector also recorded that agreement had been reached with the Highways agency resolving its particular objection.

The IPF Inspector’s principal conclusions relating to the various grounds of appeal other than under section 174(2)(a) of the 1990 Act (i.e. that planning permission should be granted), can be summarised as follows:

As Mr Village pointed out, a number of significant consequences flow from the IPF Inspector’s analysis of the legal position as summarised in paragraph 11.1.3 of the IPFIR, namely:

Following the conclusion of the IPF inquiry, but before the result was known, on 9^th September 2005, WMIAL submitted an appeal against WDC’s failure to determine its 2004 planning application for the NPT. This appeal was then co-joined with the appeal into the refusal of permission in respect of the 2003 application, which was due to be heard in January 2006. However, after the co-joinder of the two appeals, WMIAL withdrew the first appeal and focused instead on the second appeal (i.e. in respect of the 2004 planning application) and it is this appeal that constitutes the NPT appeal, the outcome of which is the subject matter of these proceedings.

As already indicated, the IPF DL from the Secretaries of State granting planning permission for the IPF was issued on 6^th April 2006, during the currency of the NPT inquiry. It is to be noted that the Secretaries of State found that the IPF development, catering for up to 0.98mppa, subject to the various stipulated conditions and the section 106 agreement, was consistent with both Government policies/guidance and the development plan: see paragraphs 76 to 78 of the IPF decision letter, which are in the following terms:

“76.

The Secretaries of State conclude that the development is in accordance with the development plan. They consider that no overriding objections arise in respect of airspace management, cultural heritage, landscape and visual matters, ecology and nature conservation, ornithological matters, and risk. However, there are significant adverse impacts in respect of noise and, to a lesser extent, odours, primarily from aircraft exhaust fumes. Public transport to serve the IPF development is presently poor, but targets for improvements are set out in the Section 106 Agreement.

77.

There are significant socio-economic benefits, arising from the development in terms of diversification of the local economy, job creation and training initiatives close to areas of deprivation, increasing the image and profile of Coventry and offering increased choice to local business and leisure travellers. The development also makes beneficial use of existing airport infrastructure and capacity in line with guidance in the White Paper: The Future of Air Transport. The introduction of a LINK-MOVA system at Tollbar End roundabout would reduce congestion and queuing at the junction and on the A45 and A46, and would be likely to lead to improvements in air quality locally. The various noise related measures offered as part of the mitigation/compensation package in the section 106 Agreement offer a substantial measure of control over flying activities at what is at present an entirely unrestricted airport. The fact that operations at the airport are at present unrestricted is of importance in assessing the value of, and weight to be given to, the package in the section 106 Agreement, and the introduction of the controls offered would be a substantial benefit to the local community.

78.

The Secretaries of State therefore conclude that there are no material considerations which cause them to determine these appeals other than in accordance with the development plan.”

As already indicated, the NPT inquiry finished on 31^st July 2006. The Inspector produced his report (“the NPTIR”) on 12^th January 2007 with the recommendation that the appeal be dismissed and that planning permission be refused. He expressed his conclusions as follows:

“20.161

I wish to make clear now that, contrary to the views expressed by WMIAL and some supporters of the development, I consider the decision on the NPT proposal to be much more finely balanced than was the situation with the IPF development. There are weighty factors for and against the development. The factors to which I give greatest weight, and which have strongly influenced my conclusion on the balancing exercise, are:

•

the inherent limitations of the site in terms of public transport accessibility, especially having regard to the close proximity of BHX [Birmingham International Airport], which already offers almost all the passenger destinations to be provided at CVT, and has incomparably better public transport accessibility – in my view this point is decisive;

•

the fact that following the IPF decision CVT is no longer an uncontrolled airport.

So far as the latter point is concerned, the introduction of controls on a previously completely unregulated airport was a crucial factor in allowing the more modest IPF development. As a result of the IPF decision the airport is now subject to extensive controls intended to minimise its environmental impact. That decision largely negates the argument of supporters of the NPT proposal that allowing that development would have the benefit of introducing such controls.

20.162

I do not overlook the fact that WDC, CCC and WCC consider that the proposed development would be acceptable, and that the appeal should be allowed. For the reasons I have given I disagree with their stance.

20.163

Having regard to all the above factors and all the evidence, my overall conclusion is that on balance, even allowing for the imposition of appropriate conditions and for the S106 Agreement, the development is not consistent with Government guidance and development plan policies and is thereby unacceptable. In my judgment there are no material considerations which would justify a departure from the development plan. I therefore recommend that the appeal be dismissed, and that planning permission be refused.”

The Secretaries of State issued their decision letter in relation to the NPT appeal (the NPT DL) on 14^th June 2007. In dismissing the NPT appeal, the Secretaries of State expressed their overall conclusions in the following terms:

“60.

The Secretaries of State conclude that the proposals are in conflict with the development plan. They consider that no overriding objections arise in respect of airspace management, landscape and visual matters, ecology and nature conservation, ornithological matters, and risk. There are significant socio-economic benefits arising from the development which would benefit the local economy, including: job creation and training initiatives close to areas of deprivation, increasing the profile of Coventry and Warwickshire nationally and internationally as a tourist and business destination; and offering increased choice to local business and leisure travellers.

61.

The Secretaries of State consider that the various noise related measures offered as part of the mitigation/compensation package in the Section 106 Agreement offer an improved level of control over flying activities that were established with the Interim Passenger Facility. However, whilst these measures would indeed benefit the local community, they would be offset by the increase in Passenger Air Transport Movements, the noisiest aircraft movements at Coventry Airport.

62.

The Secretaries of State consider that there would be significant adverse impacts in respect of noise and, to a lesser extent odours, primarily from aircraft exhaust fumes. Despite improvements compared with the Interim Passenger Terminal development, they consider that the mitigation and compensation measures offered do not outweigh such harm by reason of noise and general disturbance from increased Passenger Air Transport Movements which would be caused by this significantly larger scale development.

63.

The Secretaries of State also consider that public transport serving the airport, whilst being improved, would remain poor and, whilst they consider the targets for modal shift away from the car challenging, they do not, for the reasons in paragraph 42 above, consider them to be realistic or achievable under the circumstances proposed in this case. They also consider it relevant that passenger services would be increased at an airport with poor public transport accessibility and provision, in a situation where those services are provided only a short distance away at an airport with far superior public transport accessibility and provision, and serving essentially the same catchment. They also consider that there would be harm by reason of noise, and to a lesser extent, visual impact on the local cultural heritage, the latter of which cannot be mitigated.

64.

Although the development would make beneficial use of existing airport infrastructure, the Secretaries of State have considerable doubts as to whether it would represent the best use as required by the ATWP, given that it would detract from Coventry Airport’s specialist niche role for freight operations, for which the availability of public transport is less important, and would duplicate passenger services already available at a nearby airport much better served by public transport.

65.

In this particular case, having weighed up the arguments for and against the proposal, the Secretaries of State have concluded that the harmful impact caused by the proposal and the conflict with sustainability objectives, is not outweighed by the socio-economic and other benefits, including the proposed mitigation/compensation package proposed through the Section 106 Agreement. Overall, the Secretaries of State consider that the proposal would not accord with development plan policy. They do not consider that there are any material considerations to lead them to determine the proposal other than in accordance with the development plan.

Formal decision

66.

Accordingly, for the reasons given above, the Secretaries of State agree with the Inspector’s recommendation. They hereby dismiss your client’s appeal and refuse planning permission …”

The Grounds of Challenge. I now turn to consider the various grounds of challenge upon which WMIAL relies in these proceedings. In doing so, I wish to emphasise that I have taken fully into account all the written and oral submissions that were presented to me so carefully and persuasively by counsel for the parties although, inevitably, I have not made direct reference to all of them in the course of this judgment. I am also very grateful for the written note of both Mr Village’s opening and his closing submissions, copies of which he was kind enough to provide to me, and which I have found extremely helpful.

I have also borne in mind that the Inspector made it clear that he regarded the decision on the NPT proposal to be much more finely balanced than was the situation with the IPF development (the Inspector was the assistant inspector at the IPF inquiry). Accordingly, any material error is likely to have considerable significance so far as concerns the validity of the overall decision. As Collins J. observed in R on the application of Taylor Wimpey UK ~v~ Secretary of State for Communities and Local Government (2008) EWHC 1738 (Admin) at paragraph 29: “Since the decision was a very close run, as the Inspector recognised, the existence of deficits which he mistakenly omitted to put into the balance, even if relatively small, would be very important.”

On behalf of the Secretaries of State Mr Timothy Mould QC suggested that the various grounds of challenge could be grouped under appropriate headings, as follows (see paragraph 4 of his written skeleton argument):

The Sustainability Grounds.

Introduction to the Sustainability Grounds. The overall reasoning of the Secretaries of State is set out in paragraphs 60 to 66 of the NPT DL, quoted in paragraph 40 above. Broadly stated, the Secretaries of State agreed with the reasoning and conclusions of the Inspector on all the issues relating to sustainability and with his overall conclusion that the NPT proposal would not represent a sustainable form of development, conflicting in particular with sustainability objectives for transport: see paragraph 49 of the NPT DL, quoted below. The Inspector’s reasoning and conclusions are set out in paragraphs 20.87 to 20.106 of the NPTIR. In paragraph 20.87, the Inspector provided a helpful summary of the general nature of the sustainability matters that were considered relevant to the NPT appeal, as follows:

“20.87

Sustainability is a wide ranging concept with many strands. In the context of this appeal I consider the following topics which fall under this broad heading are of particular relevance:

•

consistency with objectives to integrate sustainable development;

•

consistency with objectives to reduce the need to travel, especially by car, via accessibility in terms of multi-modal choice;

•

car parking provision;

•

use of existing airport infrastructure;

•

the need for the NPT;

•

clawback of air passengers flying from outside the region;

•

climate change.”

In the paragraphs that follow, the Inspector set out his reasoned conclusions with regard to these various sustainability issues. As Mr Mould pointed out (correctly, in my view), the context for the allegations of unlawfulness made in the sustainability grounds is thus a very thorough set of planning judgments reached by the Inspector and with which the Secretaries of State agreed (see paragraphs 36 to 49 of the NPT DL). The general thrust of the Inspector’s conclusions on the main sustainability issues can be summarised as follows.

It is also to be noted that the first of the two factors, to which the Inspector gave greatest weight and which strongly influenced his decision on the balancing exercise that he had to carry out, was the inherent limitations of the appeal site in terms of public transport accessibility (hereafter CVT’s “locational characteristics”), especially having regard to the close proximity of Birmingham International Airport (“BIA”). The Inspector also went on to describe this factor as a decisive point (see paragraph 20.161 of the NPTIR, quoted above). However, Mr Village emphasised that CVT’s locational characteristics and its juxtaposition with BIA had not changed since the time of the IPF decision and were well known to the Secretary of State and the NPT Inspector when planning consent was granted for that particular “stop-gap” (i.e. non-permanent) development as a result of WMIAL’s successful appeal against the enforcement notices.

It was therefore Mr Village’s submission that if there had been any quality of fundamental inherent unsustainability to provide passenger services at CVT, it would have existed in the minds of the IPF Inspector and/or the Secretaries of State at the time of the IPF decision. On the contrary, CVT’s well known locational characteristics had not been regarded as an appropriate basis for refusing planning permission for the IPF facility to operate passenger flights for up to 0.98mppa, subject to an hourly bus service (the 737 service) to Coventry station. I refer to that submission at this stage in order to emphasise that I have borne it very much in mind whilst considering the various grounds of challenge under this heading.

The Inspector set out his overall conclusion with regard to the sustainability issues in paragraph 20.106 of the NPTIR, as follows:

“Conclusion on Sustainability

20.105

Having reviewed the evidence my overall conclusion on sustainability is that, on balance, the NPT proposal would not represent a sustainable form of development, conflicting in particular with sustainability objectives for transport. Given that “sustainable development is the core principle underpinning planning” [PPS1, para 3], I regard this as a very important factor weighing against allowing the appeal. I consider it to be decisive in itself.”

The Secretaries of State agreed with the Inspector’s overall conclusion on sustainability: see paragraph 49 of the NPT DL, which is in the following terms;

“Conclusion on sustainability

49.

For the above reasons, the Secretaries of State agree with the Inspector that, on balance, the proposed development would not represent a sustainable form of development, conflicting in particular with sustainability objectives for transport … They agree with the Inspector that this (i)s a very important factor weighing against the appeal, and that is decisive in itself.”

I now turn to consider the various grounds upon which the Claimant relies in support of the submission that the Inspector and, thus, the Secretaries of State erred in law in their reasons and conclusions relating to sustainability.

Ground 1: The Secretaries of State erred in their assessment of the weight to be given to the provision of a new bus shuttle service to the proposed NPT.

An important aspect of the public transport provision put forward by WMIAL, as part of the NPT scheme was the proposed introduction of a new bus shuttle service between the NPT and Warwick and Leamington Spa. The proposal was foreshadowed in the evidence of WMIAL’s traffic consultant, Mr Colin Townsley (see paragraphs 8.11 to 8.14 of his witness statement), and its details were the subject of clause 4.8 of the section 106 Agreement (which was finally agreed and dated 31^st July 2006).

Critical to the commencement of the proposed shuttle service was the approval by WDC, in consultation with WCC, of an appropriate “Catchment Area” and “Passenger Threshold” (i.e. the area to be served and the total number of passengers travelling between the NPT and both Warwick and Leamington Spa, expressed as “millions of passengers per annum”). In summary, as Mr Village pointed out, Clause 4.8 of the section 106 Agreement provided as follows (inter alia):

In paragraph 20.93 of the NPTIR the Inspector dealt with the proposed new shuttle bus service in the following terms:

“20.93

It is also hoped to introduce a new shuttle service between the NPT and Warwick/Leamington Spa … The timing of introduction of that service is, however, very uncertain given that it is to be linked to a “Passenger Threshold”, which has yet to be fixed, of passenger numbers travelling to the airport from Warwick and Royal Leamington Spa. If the threshold were set at too high a level the service might never materialise. Even WDC accept that provision of this service is no more than an idea in principle (8.8). Because of the uncertainties surrounding it, I feel unable to accord any significant weight to this prospective bus service. …”

It is clear that the Secretaries of State were in agreement with the main views expressed by the Inspector with regard to the proposed new bus shuttle service (i.e. the existence of the uncertainties surrounding it and the weight to be given to the proposal), as follows (see paragraph 41 of the NPT DL):

“41.

The Secretaries of State have had regard to the possibility of a new shuttle bus service between the proposed development and Warwick/Leamington Spa (IR20.93), and that this service is being examined as part of the Bus Strategy that is being developed as an element of the Airport Surface Access Strategy. Like the Inspector, given the uncertainties surrounding this proposal, they accord it limited weight.”

Mr Village submitted that, in reaching these conclusions with regard to the proposed new bus shuttle service, the Inspector (and thus the Secretaries of State) had fallen into error. In support of that submission, Mr Village made the following main points.

Having regard to the foregoing points, Mr Village submitted that the Secretaries of State had fallen into error in that: (i) they had taken into account an irrelevant consideration, alternatively had acted irrationally, in finding that the proposed shuttle service was merely “a hope”; (ii) they had failed to take account of the fact that the decision as to the passenger threshold lay with WDC in consultation with WCC and failed to take into account (absent cogent evidence to the contrary) that they could be relied upon to set the threshold at an appropriate level; (iii) they had failed to give proper, adequate and intelligible reasons as to why WDC might set the figure too high and/or failed to explain what was meant by the expression “too high”; and (iv) the Inspector had acted unfairly in failing to make known his concerns so that they could be addressed and/or by failing to impose a suitable condition to deal with his concerns in an appropriate fashion.

For his part, Mr Mould emphasised that the decision under challenge was that of the Secretaries of State, not the Inspector. In that regard, he stressed that the principal relevant paragraphs of the NPT DL were paragraphs 41 and 63 (quoted above), neither of which characterise the proposed shuttle service as a mere “hope”. I therefore accept the submission that, to the extent that the Inspector may be exposed to criticism for describing the proposal as a “hope”, that criticism does not extend to the decision making of the Secretaries of State.

Mr Mould submitted (correctly, in my view) that the Inspector was right to find as a fact that the passenger threshold had yet to be fixed, because it was contingent upon a number of matters that were not securely fixed at the inquiry. I agree that this much is perfectly clear from the terms of the section 106 Agreement itself (see the summary of clause 4.8 in paragraph 47 above). I also agree that, to that extent, it was perfectly reasonable for the Inspector (and thus the Secretaries of State) to conclude that the implementation of the proposed shuttle service was subject to uncertainties.

It was Mr Mould’s submission that, whilst WMIAL had proposed a system for deriving and agreeing the trigger for the new shuttle bus service, it was within the discretionary ambit of the Secretaries of State’s planning judgment to decide that, without more certainty, no significant weight should be attached to the section 106 Agreement provisions in this regard. I agree with that submission. As Mr Mould pointed out, the weight to be attached to any particular matter for the purposes of the decision-maker reaching a planning judgment is classically an area with which the court should be very wary of interfering.

I also agree with Mr Mould’s further submission that there is no substance in the suggestion that the Inspector either acted unfairly in reaching his view on these points, or that he gave inadequate reasons. WMIAL submitted a very substantial body of evidence to the inquiry and counsel made lengthy, detailed submissions on its behalf. I agree with Mr Mould that the Inspector was not required to deal with every argument and every point made by or on behalf of the Claimant at the inquiry. I accept his submission that the Inspector set out his reasons clearly on the main point in issue, as did the Secretaries of State. Furthermore, having regard to the comprehensive nature of the inquiry and the full and detailed submissions of the various parties, I am not persuaded that there is any substance in the suggestion that, by not expressing his concerns during the inquiry and/or by failing to suggest a suitable condition to deal with those concerns, the Inspector acted in a way that was procedurally unfair.

For those reasons, therefore, I have come to the conclusion that Ground 1 fails.

Ground 2: The Secretaries of State erred in their assessment of the likely achievement of modal shift targets.

As part of their consideration of the overall sustainability of the NPT development proposal, it was necessary for the Secretaries of State to make an assessment of the appropriate modal shift/split targets within the ASAS for CVT.

Paragraphs F and H of Policy T11 of the RSS provide that any proposals for use of CVT by charter or scheduled passenger flights should be subject to public transport availability and require that “challenging targets” should be set within its ASAS to encourage a greater percentage of trips by passengers, visitors and staff by more sustainable modes. The RSS does not seek to prescribe the appropriate target levels, but has left this task to the ASAS and/or the local transport plan. Paragraphs F and H of Policy T11 are in the following terms:

“F. Coventry Airport, as primarily a freight airport, provides a complementary service to those at BIA. Development plans for Warwick District and neighbouring authorities should include policies for the assessment of proposals for the expansion of Coventry Airport. Criteria should require the approach to environmental assessment and impacts set out for BIA above, and any proposals for use of Coventry Airport by charter or scheduled passenger flights should be subject to the availability of public transport to serve the airport.

…

H. Local transport plans and the Airport Surface Access Strategies should aim to ensure that improvements to strategic and local transport networks and interchanges are provided in order to ensure continued access by all modes to airports is maintained. Within these plans and strategies, challenging targets should be set to encourage a greater percentage of trips, by passengers, visitors and staff, by more sustainable modes.”

By way of relevant background, Mr Village pointed out that the modal shift/split targets that had been set out in the section 106 Agreement for the IPF (“the IPF modal shift targets”) were a 5% diversion of passengers from travelling by private car and a 7% change for employees/staff. In the event, both the IPF Inspector and the Secretaries of State concluded that, although these levels were acceptable, they would not be achieved in practice with the IPF. However, taking into account the relatively small-scale nature of the built development, they agreed that it was difficult to envisage anything else that WMIAL could reasonably put in place to assist in bringing about these modal shift targets (see paragraphs 10.11.12-14 of the IPFIR and paragraphs 66-67 of the IPF DL).

In the light of the foregoing conclusions with regard to the IPF modal shift targets, Mr Village submitted that: (i) neither the Secretaries of State nor the IPF Inspector considered that CVT was inherently unsustainable as an airport for future passenger operations, otherwise planning permission for the IPF could have been expected to be refused; (ii) the IPF modal shift targets were acceptable by reference to the small scale of what was proposed; and (iii) planning permission for the IPF was granted with modal shift targets of 5% and 7% in respect of 0.98mppa, in circumstances where it was considered that those targets were not likely to be achieved.

So far as concerned the proposed NPT, CVT sought to identify appropriate modal shift/split targets through the Air Transport Forum (“the ATF”), membership of which conformed with the relevant ministerial guidance published in 1999, for insertion into the overall ASAS for CVT. By the time of the opening of the NPT inquiry, the ATF had agreed upon staged modal shift targets for a terminal facility with a passenger throughput of 2mppa. With a throughput of 2mppa, a 10% public transport modal shift/split target was proposed for passengers, and a ratio of 75% was proposed for employees/staff (i.e. the ratio of employee cars used for journeys to/from work on a typical day to the total number of employees/staff working at CVT on a typical day). Hereafter I will refer to these targets as “the NPT modal shift targets”.

The NPT modal shift targets were set out in CVT’s ASAS and incorporated into the NPT section 106 Agreement that accompanied the NPT appeal. In addition, CVT had agreed to a pioneering approach of accepting the imposition of financial penalties in respect of its employee target. Broadly stated, if CVT failed to meet its employee ratio target, it was to be subject to financial penalties levied in accordance with a methodology set by WCC.

That the NPT modal shift targets as set out in the ASAS/section 106 Agreement met the RSS T11 F and H policy requirement of being both challenging and realistic had been agreed by all the relevant stakeholders within the ATF including WCC, WDC, the Highways Agency, CCC and Centro (the name given to the West Midlands Passenger Transport Executive, itself part of the West Midlands Passenger Transport Authority). Furthermore, as Mr Village emphasised, during the course of their evidence to the NPT inquiry, the various expert witnesses who dealt with transport related matters on behalf of objectors also expressly agreed that the NPT modal shift targets were both challenging and realistic/achievable – apart from one (Mr Tucker, who gave evidence on behalf of BIA), who considered that more challenging targets should be imposed.

In paragraphs 20.93 to 20.97 of the NPTIR, the Inspector expressed his assessment and conclusions on this aspect of the matter in the following terms (inter alia):

“20.93

… Financial penalties are to be levied in the event of targets for the staff service not being met, but there are no equivalent penalties in respect of bus services for airline passengers. I regard that latter point as a weakness of the package offered, sharing the concern of CPRE …

20.94

Amongst other things, the ASAS forming part of the S106 Agreement indicates that the ATF has already set modal split targets for passengers and staff for 2011 (or 1.75mppa, whichever comes first) of 8% by public transport and 80% ratio respectively; and for 2014 (or 2mppa, whichever comes first) of 10% by public transport and 75% ratio respectively. … These targets would be reviewed annually by the ATF, having regard to Government guidance, with a view to making them more challenging as passenger throughput increases.

20.95

I acknowledge the positive spirit in which these targets are set and are to be reviewed, and the laudable aim of encouraging the provision of new bus services, and diversion of existing services, to the airport. However, I am very sceptical about the likelihood of even the initial passenger targets being achieved, and it is relevant to note that WMIAL acknowledge that the targets in the S106 Agreement represent a minimum public transport provision. … The 737 service is not dedicated to the airport and, on the occasions when I travelled on it, picked up and dropped off non-airport related passengers, including shoppers and people working on the Middlemarch Business Park, at many points along its route. I also agree with BIAL that from Coventry Railway station, one of the key stops on the 737 service, it is easier to travel to BHX than CVT … It continues to be difficult to gain convenient access to the airport by means other than the private car. Moreover, the provision of extensive car parking (3,825 spaces being included in the application) to serve the NPT so conveniently close to the terminal will, I believe, continue to attract motorists, notwithstanding any actions by WMIAL intended to discourage use of the car. My reservations on this point are important in the context of Government guidance on modal share targets: I accept that the targets are challenging, but I am not persuaded that they are realistic or achievable. I regard that as a very important point: it would be nonsense to allow a development on the basis of a challenging target having been set, if there were little realistic prospect of that target being met.

20.96

A similar conclusion was reached in respect of the IPF development. Nevertheless that development was considered acceptable on the basis that the package of measures to reduce use of the car was acceptable, in that it was doing as much as possible in connection with a modest (my underlining) passenger air terminal … The IPF complex, capped at 0.98mppa, is not only modest in size but its physical limitations effectively render it self-regulating in terms of passenger throughput. With a floor area of 10,250² the NPT would be much larger in scale, and I would not regard it as a modest development, even capped at 2mppa. On any reasonable comparison with the physical capacity and constraints of the IPF, the NPT would be capable of accommodating a passenger throughput considerably in excess of the proposed 2mppa cap. Moreover, pressure for that cap to be lifted is probable …, though I agree with the appellant that any such proposal would have to be determined on its own merits at the time.

20.97

With the above points in mind I feel that the NPT proposal is clearly distinguishable from the IPF development. To adopt a phrase used by objectors, it is “a different animal”. On that basis I consider that it is reasonable and appropriate to take a firmer line, in respect of assessing the acceptability of the limited extent to which use of the car can be reduced, than was taken in respect of the IPF development. My view is that the NPT proposal would not meet the sustainability objectives in terms of integrating sustainable development and reducing the need to travel by car.”

In paragraphs 42 to 43 of the NPT DL, the Secretaries of State agreed with the views expressed by the Inspector, as follows:

“42.

The Secretaries of State have had regard to the targets for modal shift set out in the Airport Surface Access Strategy … They agree with the Inspector that the targets are challenging, and they consider that the targets are consistent in this respect with the Inspector’s report into the emerging Local Plan. However, for the reasons set out in IR20.95, they consider that, in this particular case, there is little prospect of these targets being met (IR20.95), and, like the Inspector, they are not persuaded that they are realistic or achievable. They agree with the Inspector that it would be a nonsense to allow a development on the basis of a challenging target being met (IR20.95). They also agree with the Inspector, for the reasons set out in IR20.96, that the proposed development should not be regarded as modest, in contrast to the Interim Passenger Facility.

43.

For the above reasons, the Secretaries of State agree with the Inspector that the proposed terminal would not meet sustainability objectives in terms of integrating sustainable development and reducing the need to travel by car (IR20.97).”

Mr Village submitted that the Inspector’s conclusions (and, thus, those of the Secretaries of State) on this aspect of the matter were seriously flawed because he had apparently ignored or not taken properly into account those material factors that favoured an opposite conclusion. In this regard, it was Mr Village’s submission that the Inspector erred in the following respects: (i) he had rejected the effectively unanimous expert opinion that the targets were challenging, realistic and achievable; (ii) he had failed to give proper, adequate and intelligible reasons for departing from the views of the experts; (iii) insofar as he had relied on the fact that the 737 service is not an airport-dedicated service and on the presence of “extensive” parking in order to justify his conclusions, he had failed to take properly into account that these matters were well known to the experts; and (iv) he had taken into account the irrelevant fact that it is easier to travel to BIA by public transport from Coventry railway station than to CVT.

Further or in the alternative, Mr Village submitted that the Inspector’s reasoning was flawed because it was expressed to be referable only to the following factors: (i) his analysis of the nature of the existing 737 bus service and (ii) the proximity of car parking.

It was Mr Village’s submission that the Inspector’s limited reasoning was manifestly deficient and revealed that he had failed to take into account the following relevant considerations (in particular): (i) the approved improvements to the Pool Meadow bus station that will significantly improve connectivity between the 737 service and other buses; (ii) the beneficial effect of the proposed increase in the frequency of the 737 service to a half-hourly service; (iii) the fact that the Inspector’s criticisms of the 737 service (e.g. that it was not a dedicated service) could have been suitably addressed and appropriate remedial steps taken (e.g. by amendment of the section 106 Agreement and/or the imposition of suitable conditions) if he had identified his various criticisms; (iv) the enhancement of sustainability resulting from the provision of a bus service into a large employment area (i.e. Middlemarch Business Park) and the increase in public transport provision in the area which would result from the NPT; (v) the other non-car modes of travel that were relevant to modal shift, such as car sharing, cycling and pedestrian access, bearing in mind CVT’s close proximity to a catchment area where such modes of travel would be entirely possible; (vi) the full and correct nature of the relevant provisions of the section 106 Agreement relating to the employee targets and their enforceability (e.g. it was his apparent but incorrect understanding that financial penalties were to be levied only in the event that targets for the staff bus service were not met: see NPTIR 20.93); and (vii) the significance of the financial penalties in assessing the robustness and achievability of the targets and the weight to be attached thereto.

For his part, Mr Mould submitted that this ground, like many of the other grounds of challenge, was a thinly disguised attempt to re-argue the merits of the appeal. In my view, there is much force in that submission – despite Mr Village’s vigorous protestation that such was not the case.

As it seems to me, the Inspector’s reasons for his conclusions are clear and straightforward. In my view, the fact that he explained his conclusions by reference to those clearly expressed reasons does not justify the suggestion that his reasoning was deficient or that he failed to take account of material considerations. I therefore reject Mr Village’s submissions to the contrary effect.

As Mr Mould pointed out, the Inspector found that the modal split for passengers travelling to the airport was not supported by any financial penalties (which he regarded as a weakness in the package, as he was entitled to do) and he expressed scepticism about the targets that had been set, given that the 737 is not a dedicated airport shuttle but, in effect, a shopper and commuter bus that stops frequently along its route to pick up fresh passengers and to let others alight – something that he confirmed and experienced for himself by travelling on the service in question on a site visit. Accordingly, for air passengers seeking to access the airport (i.e. the key group whose travel choices the Inspector was assessing on this aspect of the matter), the fact that the 737 is not a dedicated service provides a clear disincentive to choosing that mode of travel. The Inspector also found that the proposed car parking would be attractive to motorists and thus would deter the use of public transport.

I agree with Mr Mould that the matters summarised in the previous paragraph are all clearly explained and reasonable planning judgments that the Inspector (and thus the Secretaries of State) was entitled to reach on all the evidence. In my view, as Mr Mould submitted, the Inspector disagreed with the Claimant’s case on this aspect of the matter, as he was entitled to do – even in the face of expert evidence, and he gave reasonable, intelligible and properly explained reasons for having done so. Furthermore, for the reasons summarised in paragraphs 21 to 23 of Mr Mould’s written skeleton argument, I am of the view that there is no substance in the other points made by Mr Village on this aspect of the matter.

Accordingly, I am satisfied that the decision reached by the Secretaries of State that the NPT modal shift targets are neither realistic nor achievable is a planning judgment that is both reasonable and adequately explained. In my view, this aspect of decision-making cannot possibly be stigmatised as irrational and/or Wednesbury unreasonable. This ground of challenge therefore also fails.

Ground 3: The Secretaries of State erred in their treatment and/or approach to the 2mppa cap on the NPT.

Mr Village submitted that the main reason given by the Inspector for taking a “firmer line” with the NPT proposal in terms of sustainability, than was taken in respect of the IPF, is that the NPT was a “different animal”: see paragraph 20.97 of the NPTIR, quoted above. Mr Village contended that the Inspector reached that conclusion because he found that the IPF proposal was modest in size (capped at 0.98mppa) and its physical limitations rendered it self-regulating and thus with no scope for exceeding its 0.98mppa cap (see paragraph 20.96 of the NPTIR, quoted above). In contrast, the Inspector found that the NPT: (i) had a floor area of 10,250 sq m., (ii) would thus be much larger in scale, and (iii) would not be a modest development, even capped at 2mppa, because (unlike the IPF) it would be capable of accommodating a passenger throughput considerably in excess of its cap of 2mppa and pressure for that cap to be lifted was probable.

Mr Village suggested that the Inspector appears to have applied the following line of reasoning in order to arrive at his foregoing conclusions on this aspect of the matter.

Mr Village submitted that in adopting this approach and imposing a “firmer line” in the treatment of the sustainability assessment of the NPT than had been applied previously to the IPF, the Inspector and the Secretaries of State fell into error in a number of crucial respects. In support of that submission, Mr Village made the following main points.

Mr Mould referred to the expression “A similar conclusion …” at the beginning of paragraph 20.96 of the NPTIR and submitted (correctly, in my view) that the conclusion there referred to is that expressed in the previous paragraph (NPTIR 20.95), namely that the targets for modal split were challenging but unlikely to be met. Mr Mould pointed out that the Inspector then goes on to say that what outweighed that conclusion in the case of the IPF was that the IPF development offered, for the first time, the prospect of a package of measures in the context of a “modest” passenger air terminal. Mr Mould submitted that the reason for this reference was that it was part of WMIAL’s case that the IPF set a baseline or precedent for how the NPT appeal should be approached.

It was Mr Mould’s submission that, in paragraphs 20.96 to 20.97 of the NPTIR, the Inspector was simply explaining why he distinguished the relevant material planning considerations in the IPF case from those in the instant case. He submitted that this was a perfectly reasonable exercise in the light of WMIAL’s case at the inquiry. I agree with that submission.

Turning to Mr Village’s specific criticisms, I agree with Mr Mould that the Inspector was not determining the acceptability of the NPT by reference to a notional and speculative development, but was merely responding to part of WMIAL’s own fall back case. There is therefore no substance in the points summarised in paragraph 84(1) and (2) above. I also agree that the finding of fact that the NPT would be “much larger in scale” (at 10,250 sq. m.) than the IPF at 3000 sq. m. is entirely reasonable in all the circumstances. Even though there is no room for shops etc. in the IPF, the comparison is still between like and like i.e. the comparison is between the scales of the two passenger terminals as they are (albeit actual and proposed).

Furthermore, when the Inspector’s reasoning is read as a whole, it is clear that he does not focus on the physical size of the NPT rather than on the passenger throughput; the physical scale of the NPT is only one of the factors that the Inspector took into account – but he clearly did so in the context of passenger throughput. I also agree with Mr Mould that all the Inspector meant, when he used the expression “a firmer line”, was that there were fewer considerations to outweigh the lack of achievable modal shift targets where the NPT is concerned, especially since it is so much bigger than the IPF.

In my view, the Inspector was entitled to make the findings that he did on all the evidence and, given the nature of those findings, it was entirely reasonable for him to reach the planning judgment that the NPT was a “different animal”. I am satisfied that there is nothing irrational, perverse or unfair in any of the Inspector’s reasons and conclusions on this aspect of the matter. His conclusions are clearly stated and his reasons reasonable, intelligible and adequate. It follows that there is also no basis for impugning the conclusions of the Secretaries of State on the same issue.

For those reasons, therefore, this ground of challenge also fails.

Ground 4: The Secretaries of State erred in their assessment of the proposed car parking.

Mr Village referred to the Inspector’s conclusion, with which the Secretaries of State agreed, to the effect that the proposed car-parking provision would continue to attract motorists, notwithstanding any action by WMIAL to discourage such use: see paragraph 20.95 of the NPTIR and paragraph 42 of the NPT DL, quoted above. Mr Village submitted that the Inspector, and thus the Secretaries of State, had made a series of fundamental and prejudicial errors in that assessment of the level of the proposed car-parking provision.

In support of that general submission, Mr Village made five main points.

First, he suggested that the Inspector and the Secretaries of State had failed to take account of, or provide any reasons for rejecting, the fact that the proposed level of car-parking reflected the requirements of the relevant transport authorities for sufficient parking to cater for the development and that the level of parking proposed was well within the appropriate range of other similarly sized airports. Mr Village therefore submitted that the Inspector and the Secretaries of State had failed to have regard to the fact that the proposed level of car-parking was actually necessary to meet any objection from the relevant authorities based on the adequacy of that provision.

Second, Mr Village submitted that the Inspector and the Secretaries of State had failed to deal with WMIAL’s argument that CVT had a proportionately lower level of parking per passenger than BIA (which was nevertheless considered to be a more sustainable airport operation): see paragraph 4.5.18 of WMIAL’s closing submissions at the inquiry.

Third, Mr Village contended that the Inspector/Secretaries of State had failed to deal with Mr Townsley’s evidence at the inquiry to the effect that close on-site car-parking at a passenger terminal of the type proposed for CVT was more sustainable than the model at BIA because it would save making longer journeys around the airport.

Fourth, Mr Village submitted that the Inspector and the Secretaries of State had failed to have any proper regard to the nature of the car-parking strategy that was to form part of the ASAS, which provided for the phased release of parking spaces to reflect passenger throughput at the new terminal, so that there would never be an excess of spaces providing an encouragement for journeys by car to CVT.

Finally, it was Mr Village’s submission that the Inspector and the Secretaries of State had acted unfairly in failing to identify the level of car-parking that would have been appropriate in the light of their concerns.

For his part, Mr Mould submitted (correctly, in my view) that this aspect of WMIAL’s case simply does not address the fact that the critical conclusion reached by the Inspector on this aspect of the matter (and accepted by the Secretaries of State) was that the existence of 3825 car-parking spaces in a location that is readily accessible by the private motor car was a factor that cast doubt on the sustainability of the proposed scheme and its ability to meet the modal shift/split targets: see NPTIR paragraphs 20.88 and 20.95, quoted above.

As Mr Mould pointed out, the critical conclusion reached by the Inspector and the Secretaries of State related to the likely mode share at CVT – a mode share that, in any event, was found to be much more attractive to the car driver and one that was significantly worse off as regards public transport provision when compared with BIA (which was acknowledged also to be attractive to car users). I therefore also agree with Mr Mould’s further submission that the fact that the level of proposed car-parking resulted from the minimum requirements of the transport authorities does not, ipso facto, support the suggestion that the Inspector and the Secretaries of State erred in law in reaching that critical conclusion – nor does the fact that the level of proposed parking was commensurate with that at other similarly sized airports, nor that it was a proportionately lower level of provision per passenger than at BIA. In my view, none of these matters calls into question the validity of the planning judgment made by the Inspector and the Secretaries of State on this aspect of the matter.

I also agree with Mr Mould that the Inspector cannot be reasonably be criticised for not expressly dealing with either Mr Townsley’s evidence or with the details of the phased release of the proposed car-parking. As Mr Mould pointed out, the Inspector concentrated on dealing with the main and crucial point, namely that in his judgment the proximity of the proposed car-parking to the NPT would make car travel attractive and that this therefore cast doubt on the mode share/split targets promoted by WMIAL.

Finally I cannot accept the submission that it was procedurally unfair not to suggest the appropriate level of car-parking provision. As Mr Mould submitted, the decision-making role of the Inspector and the Secretaries of State is to reach planning judgments about proposals made to them. They are not under any duty to make suggestions as to how the applicant can alter or adjust his proposals in order to make them acceptable and there is certainly no procedural unfairness in either of them failing to make any such suggestion. I therefore reject Mr Village’s submissions to the contrary effect.

Accordingly, for those reasons, I have come to the conclusion that this ground of challenge also fails.

Ground 5: The Secretaries of State erred in their assessment of the degree of compliance with the Local Transport Plan.

As already stated, policy T11 H of the RSS (quoted above) requires Local Transport Plans and the ASAS to set challenging targets to encourage a greater percentage of trips by passengers, visitors and staff/employees by more sustainable modes of travel.

The Local Transport Plan (“the LTP”) relevant to these proceedings was prepared by WCC and published in March 2006. Therefore, as Mr Village pointed out, it predates the Secretaries of State’s decision relating to the IPF. The LTP identifies strategy and funding for transport over the period 2005 to 2011. In the section headed “Aviation (Surface Access) Strategy” a number of problems and opportunities are identified in a passage that precedes a statement of the relevant strategy. Included in the list of problems is the following: “There is currently very limited public transport access to Coventry Airport.” One of the matters identified as an opportunity is: “The development of a Surface Access Strategy for Coventry Airport should identify the need for a step-change in public transport (bus) provision (services and infrastructure), as well [as] access improvements for cyclists and pedestrians.”

In paragraphs 20.91 and 20.92 of the NPTIR, the Inspector expressed the following view with regard to proposed scheme’s compliance with the LTP:

“20.91

In the decision on the IPF development it was concluded that the public transport provision then proposed was the bare minimum to satisfy RSS policy T11 … With a capped capacity of 0.98mppa the IPF was to be served by the 737 shuttle bus service operating hourly between the airport and Coventry rail and bus stations. …

20.92

So far as the current proposal is concerned, with passenger numbers intended to be capped at 2mppa, the frequency of the shuttle bus would be doubled to one every half hour … In very simple terms, comparing the NPT proposal with the IPF situation, twice as many buses on the 737 route are to be provided for twice as many passengers. A new free local employee bus service is now in operation, centred on the airport and connecting with a number of local areas. … I do not regard these improvements to public transport accessibility as representing the step change mentioned in the LTP which, though not part of the development plan, is nevertheless a material consideration. WCC go so far as to say that it would be an important consideration if a step change were not achieved …, and WDC also accept that the LTP is a weighty consideration … I agree with their views on the weight to be accorded to the LTP, especially in the overall context of Government policy on sustainability.”

In paragraph 40 of the NPT DL, the Secretaries of State expressed agreement with the Inspector’s foregoing reasoning and conclusion, as follows:

“The Secretaries of State agree with the Inspector, for the reasons set out in IP20.91-20.92, that the proposed improvements to public transport accessibility do not represent the step change mentioned in the Local Transport Plan. They accord this lack of a step change significant weight.”

Mr Village submitted that in reaching this particular conclusion with regard to the proposed scheme’s failure to meet the requirements of the LTP, the Inspector and the Secretaries of State fell into error for the following reasons:

Mr Mould submitted that none of these points indicates any mistake of law on the part of the Inspector or the Secretaries of State. I agree. As I have already pointed out, the Inspector was not required to set out every alleged concession made by witnesses at the inquiry. In this case, the Inspector made up his own mind about whether the public transport package amounted to a step change and he concluded that it did not. In reaching that conclusion, the Inspector was entitled to disagree with the experts, provided that he gave reasons that stand up to scrutiny and here, as it seems to me, he clearly did so.

Furthermore, I accept Mr Mould’s submission that the Inspector was entirely justified in referring to the passage in question in the LTP because it lent further force to his dissatisfaction with the public transport package proposed by WMIAL. I agree with Mr Mould that the Inspector is merely saying that the package would not fulfil the intention of the LTP. In my view, that finding was not only open to him on the facts, but was well within his discretion to interpret and apply relevant planning policy.

Finally, I agree with Mr Mould that there is no substance in the submission about the comparison between the IPF and the NPT proposal. The essential point made by the Inspector is that what was proposed amounted to twice as many buses on the 737 route for twice as many passengers through the terminal (as indicated above, it was his view that there were too many uncertainties relating to the proposed shuttle bus service for any real weight to be attached to that aspect of the proposals).

It was clearly necessary for the Inspector to refer to the IPF in order to make this point good and to make the unchallenged but important relevant additional finding that the bus service provision for the IPF represented “the bare minimum”. Having done so, as it seems to me, the Inspector was entitled to conclude as a matter of planning judgment that merely to double the number of existing buses of a “bare minimum” service to cater for a proposed throughput of twice as many passengers did not represent a “step change” within the terms of the LTP. I agree with Mr Mould that this was a judgment that the Inspector was entitled to reach as part of his dissatisfaction with the public transport package proposed.

Accordingly, for those reasons, this ground of challenge also fails.

Ground 6: The Secretaries of State failed to take into account or give adequate reasons for rejecting “the virtuous circle”.

Mr Village submitted that it was generally accepted that there is a “virtuous circle” in respect of the provision of public transport to serve an airport and the number of passengers that are able to use the facility: i.e. the greater the number of passengers that use an airport, the greater the opportunities for viable additional public transport. However, Mr Village pointed out that this principle had not been accepted by Mr Tucker, who gave evidence on behalf of BIA, and submitted that it therefore became a point of contention in the appeal that required consideration, determination and application in the context of the level of public transport provision on offer as part of the NPT scheme. It was Mr Village’s submission that the Inspector (and thus the Secretaries of State) fell into error in failing to deal with this principle and/or in failing to give any reasons or explanation why it was considered that the public transport offer for the NPT did not meet the requirements of policy in the light of that principle.

For his part, Mr Mould pointed out that the relevant main issue for the Inspector/Secretaries of State was the efficacy of the proposed public transport provision. He contended that the validity of their determination of that issue was not dependent on the Inspector and the Secretaries of State having dealt specifically with the principle of the virtuous circle. He submitted that this was so because the NPTIR and the NPT DL set out clearly their reasons why they had reached the planning judgment that they did on the main issue, namely that the NPT proposals were unacceptable in public transport terms: i.e. because CVT would continue to be too attractive to car drivers and the proposed public transport provision would be too inadequate to lead to the required modal shift as promoted by WMIAL. I accept Mr Mould’s submission that, in the light of that reasoned rejection of WMIAL’s case on the main issue, it was not necessary for them to go on and explain additionally why there would not be a “virtuous circle” in this case.

For those reasons, therefore, this ground of challenge also fails.

Ground 9: The Secretaries of State erred in their assessment of the likely amount of clawback trade from other airports.

Mr Village stressed that two important aspects of Government policy, as expressed in its December 2003 White Paper “The Future of Air Transport” (“the ATWP”), are: (i) the principle of minimising the need for airport development in new locations by making best use of existing capacity where possible and (ii) encouraging growth of activity at regional airports (of which CVT is one). As Mr Village correctly pointed out, it is by such means that support is given for regional economic development and passengers are provided with greater choice, reducing pressures on more over-crowded airports in the south east and reducing the need for long distance travel to and from airports.

Mr Village submitted that WMIAL relied on these principles as part of its case at the NPT appeal as to the positive effects to be derived from CVT providing for 2mppa on an existing runway at an existing airport which could serve the local region and, on the evidence, as a basis for rejecting BIA’s objection to the CVT proposal. As Mr Village said, put simply it was WMIAL’s case that the NPT appeal proposal would stem leakage from the region, having the doubly beneficial effect of reducing pressure on south east airports and reducing travel by car. Mr Village submitted that this was therefore an important sustainability issue in respect of which WMIAL was entitled to a determination that was supported by proper, adequate and intelligible reasons.

In paragraph 20.90 and 20.100-20.101 of the NPTIR the NPT Inspector expressed his conclusions in the following terms:

“20.90

I consider it relevant to bear in mind that there is an alternative airport (BHX) [i.e. BIA] only a few miles from CVT, offering services to similar destinations (but within a much wider range of destinations), itself a major transport interchange, and serving a very similar catchment. If the NPT appeal were dismissed virtually all the services which would have been provided would be readily available a relatively short distance away at BHX. On that basis there is on the face of it some merit in the argument that there is no need for the NPT development … and it also has a bearing on the sustainability objective of reducing the need to travel by car. Guidance in PPS23 … is that “Applicants do not normally have to prove the need for their proposed development, or discuss the merits of alternative sites.” However, the paragraph goes on to say that the availability of alternative sites may be material to the planning decision, in the context of the nature of polluting developments and the national or regional need for them. In that context the extra passenger services associated with the NPT development would undoubtedly be polluting in terms of aircraft noise and odours.

…

20.100

A key issue identified in the ATWP is the fact that less than half of the air passengers travelling to or from the Midlands use the region’s airports … There is leakage to airports in the South East and Manchester. It is recognised that there is an opportunity to claw back some of this leaking traffic, reducing the number of long distance journeys currently made, mainly by car. A knock on effect is the need for increased runway capacity. On that point one of the main conclusions drawn is that “the preferred location for a new runway to meet future growth in passenger demand in the Midlands is at Birmingham.”

20.101

A study by York Aviation for WMRA concludes that the most serious leakage of passengers from the region is in terms of long haul services … Because of its runway length CVT can make no contribution to clawing back long haul passengers. That study also concludes that, realistically, there is limited scope for clawing back passengers flying to short haul European destinations … There is insufficient evidence to reach a firm conclusion on the degree of claw back which might be achieved, even the figures in the York Aviation report appearing to be little more than assertion. I also note the point made by WMJC that WMIAL has given no detailed analysis of the origin of CVT passengers … That is a surprising omission. My own view is that passenger services at CVT are likely to contribute in small part to clawing back passengers, but that might well be at the expense of claw back achieved by improvements at BHX given the close proximity of the two airports and the similar services offered. On balance, I regard the clawback point as inconclusive, and feel that it should be given little if any weight.”

In paragraphs 38, 39 and 45 of the NPT DL, the Secretaries of State expressed agreement with the Inspector’s foregoing reasons and conclusions on this aspect of the matter, as follows:

“38.

The Secretaries of State agree with the Inspector that it is relevant to bear in mind that there is an alternative airport (Birmingham International) only a few miles from Coventry Airport offering services to similar destinations (but within a much wider range of destinations), itself a major transport interchange, and serving a very similar catchment … They have had regard to the fact that if the appeal is dismissed, virtually all the services which would have been provided would be readily available a relatively short distance away at Birmingham International Airport. On that basis, they agree with the Inspector that, on the face of it, there is some merit in the argument that there is no need for the proposed development, and it also has a bearing on the sustainability objective of reducing the need to travel by car …

39

For the reasons set out in IR20.90, the Secretaries of State agree with the Inspector that, in line with guidance in PPS23, in this particular case, the availability of alternative sites may be a material consideration. They agree with the Inspector that the extra passenger services associated with the proposed development would undoubtedly be polluting in terms of extra aircraft noise and odours.

…

45.

For the reasons set out in IR20.100-20.101, the Secretaries of State agree with the Inspector that passenger services at Coventry are likely to contribute in small part to clawing back passengers, but that this might well be at the expense of claw back achieved by improvements at Birmingham International Airport, given the proximity of the two airports and the similar services offered. Overall, they agree with the Inspector that the clawback point should be regarded as inconclusive, and that it should be given little, if any, weight …”

Mr Village submitted that, in light of the relative proximity of BIA, the extent to which CVT operating at 2mppa was potentially able to clawback passengers leaving the region, rather than merely diverting passengers from BIA, was clearly a relevant issue. He pointed out that this was one of the matters directly explored in an independent report prepared by a specialist consultancy, York Aviation Limited (“the YAR”), that had been commissioned by the Regional Development Agency for the West Midlands, Advantage West Midlands (“AWM”), and part funded by the West Midlands Joint Committee (“WMJC”) and the West Midlands Regional Authority (“WMRA”). AWM was a statutory consultee in respect of the NPT appeal proposal. It submitted written representations to the inquiry and included the YAR as a core document.

The YAR is a lengthy document that analyses the potential effects of operating both CVT and BIA at various levels. The YAR identifies (amongst other things) analysis to the effect that the indicative level of diversion from BIA by CVT’s operations (as assessed in the YAR) would be in the region of 57%. It therefore was WMIAL’s case that 43% of CVT passengers would inevitably have flown from airports other than BIA had they not flown from CVT.

The analysis and consequential implications of the findings in the YAR were considered and adopted and/or used by WMIAL’s relevant witnesses at the inquiry. In effect, it came to form part of the evidence in WMIAL’s case, although originally introduced by AWM. Mr Stephen Nichol, who gave expert evidence on the economic implications of the proposed development, expressed general agreement with the relevant YAR figures and conclusions. However, he also went on to express the view that it was very difficult to identify a precise figure to represent the degree of diversion from BIA to CVT, but that the figure of 57% in the YAR was likely to be too high.

Mr Village also submitted that BIA’s relevant witness on this aspect of the matter, Mr Brundell, had made a number of important concessions with regard to the YAR analysis and/or had acknowledged there to be common ground on a number of important aspects of this matter, as follows (see paragraph 4.108 of the Details of Claim).

Mr Village submitted that, despite the importance of this particular issue and the nature and extent of the important concessions that had been made in relation to it, the Inspector’s treatment of the issue was erroneous in a large number of respects and seriously deficient. He suggested that this was hardly surprising since the Inspector had limited his conclusions to only one short paragraph of the NPTIR (i.e. paragraph 20.101, quoted above), despite the need to consider an extensive body of relevant evidence in the light of detailed concessions and comprehensive submissions.

Mr Village referred to paragraph 20.101 of the NPTIR and submitted that the following main errors and omissions by the Inspector are apparent from the cursory nature of that paragraph.

I do not accept that the Inspector’s conclusion that BIA would serve virtually the same catchment and provide virtually the same service were the proposed NPT development not to proceed was either wrong or unjustifiable (see NPTIR, paragraph 20.90, quoted above). In my opinion, as Mr Mould submitted, in coming to that important conclusion the Inspector was exercising a reasonable planning judgment having regard to the totality of the evidence.

The Inspector then accurately summarised the nature of the clawback issue in paragraph 20.100 of the NPTIR (see above) and at the same time linked it to the ATWP and its conclusion that “the preferred location for a new runway to meet future growth in passenger demand in the Midlands is at Birmingham.” Having done so, the Inspector proceeded to deal with the YAR in paragraph 20.101, coming to the various conclusions expressed in that paragraph (see above). Again, as it seems to me, those conclusions are the result of a typical instance of the exercise of planning judgment. I agree with Mr Mould’s submission that the criticisms made of these paragraphs are essentially a complaint that the Inspector did not accept WMIAL’s case at the inquiry. The YAR, the views of WMIAL’s witnesses and those of Mr Brundell and others opposing proposed development all amounted to evidence that the Inspector was entitled to evaluate when coming to his conclusions. He was entitled to place less weight on the YAR than did WMIAL’s witnesses and he gave his reasons for doing so. In my view, those reasons were reasonable, intelligible and adequate and ones that he was entitled to reach on all the evidence.

I also agree with Mr Mould that the Inspector’s finding about trade diversion from BIA was reasonable and relevant to his consideration of the issue of sustainability. The Inspector concluded that there might be some such impact on BIA. As it seems to me, that conclusion is entirely consistent with the YAR opinion that there would be a trade diversion of around 57% from BIA to the NPT. I accept the submission that this evidence corroborates, rather than undermines, the Inspector’s conclusions in paragraph 20.101 of the NPTIR. The 57% diversion evidence of course supports the view of the Inspector and the Secretaries of State that any clawback by CVT from further afield might be at the expense of the clawback brought about by improvements at BIA. In other words, the competition between the two airports would also extend to the share of any clawback that they achieved.

I also agree that the criticism summarised in paragraph 129(2) above does not fairly reflect what is said in paragraph 20.101 of the NPTIR. As Mr Mould pointed out, in that paragraph the Inspector did not go so far as to say that virtually all the people who would have travelled from the NPT would travel from BIA; what he does say is that virtually all the services that would be provided at the NPT would also be provided at BIA – a very different proposition and one, as it seems to me, that is relatively uncontroversial.

Furthermore, I am not persuaded that the Inspector confused the concepts of clawback and diversion. As Mr Mould suggested, the Inspector focused primarily on whether there was sufficient evidence to convince him that the proposals would have the effect of clawing back trade from further afield. For the reasons that he gave, he concluded that the NPT might achieve a small clawback, but that this might be at the expense of the clawback that would be achieved following the improvements at BIA. As a result, he regarded the claw back point as inconclusive. In my view, these were all carefully expressed planning judgments for which he provided intelligible, reasonable and adequate reasons. Finally, for the reasons given by Mr Mould in paragraph 41 of his written skeleton argument, I am satisfied that there is no substance in the allegation of unfairness summarised in paragraph 129(6) above.

Again, as in the previous grounds, in my view this ground is essentially an attempt by the Claimant to reargue the original appeal. I am satisfied that the conclusions reached are clearly stated, are ones that it was open to the Inspector and the Secretaries of State to reach on a consideration of all the evidence and are ones that are supported by intelligible, reasonable and adequate reasons. For all the foregoing reasons, this ground of challenge also fails.

Introduction to the Fallback Grounds. The issue of CVT’s “fallback” position was another central issue at the NPT inquiry. In short, the issue was concerned with what would be likely to happen if planning permission were to be refused for the NPT. It was Mr Village’s submission that the relevance of the fallback position permeated all the judgments on the acceptability of the development proposal overall. Thus, for example, it was WMIAL’s case that the noise impacts of the NPT proposal had to be assessed against (inter alia) the noise impacts that would arise in the future from CVT continuing to operate as an airport without the NPT in place.

It was WMIAL’s contention that CVT’s position at the time of the inquiry was that the section 106 package of measures in operation with the IPF were limited to, and would lapse with, the IPF operation (pursuant to the planning permission granted following the successful IPF appeal). Therefore the section 106 benefits associated with the IPF did not bind the CVT land in perpetuity – they only remained in place for so long as the permitted IPF remained in place and in operation as a passenger terminal. It was WMIAL’s case that the IPF was unlikely to continue to operate if the NPT were refused permission, following which CVT would return to its original status as an unregulated airport and that it was this that represented the true fallback position.

The Inspector dealt with the fallback position in paragraphs 20.77 to 20.82 of the NPTIR, as follows:

“The Fall Back Position

Air Cargo

20.77.

CVT has a number of important attractions so far as the air cargo market is concerned. These include: its 24 hour operation; its strategic location in the “Golden Triangle”, including its position close to the heart of what remains of the UK manufacturing industry; its flexible attitude to cargo handling on the aprons; and spare runway capacity …

20.78

It is said that if this appeal fails WMIAL would have no alternative but to pursue other options, including growth in cargo operations and expansion of CVT’s role as a cargo airport … I accept that it would be reasonable to expect the appellant to pursue growth in cargo operations in the event of this appeal being dismissed. In particular, I would expect express cargo operations to grow, building on the niche role CVT has already established. The appellant claims that an aggressive and diverse cargo marketing approach could cause CVT to become an attractive base for older, and implicitly relatively noisy, freighters not welcomed at other airports, and with an increase in night flying … If such a situation were to arise the Secretary of State for Transport has powers, under section 78 of the Civil Aviation Act 1982, to regulate noise and vibration from aircraft … I would respectfully expect consideration to be given to exercising these powers if the airport did indeed become a base for noisy aircraft, particularly if they were to be used at night. For that reason I consider WMIAL’s description of the choices open to it … to be too simplistic, even perhaps unrealistic, and caution against giving undue weight to the alleged adverse environmental consequences of the claimed fall back position of unrestrained growth in cargo operations. It has to be borne in mind that WMIAL are likely to seek to expand all aspects of the airport operation in any event, even if the appeal is allowed …

20.79

Although growth of cargo operations is probable in the event of the appeal being dismissed, I have strong reservations about the scale of growth likely to be achieved. Mr Llewellyn’s initial position was that with aggressive marketing a growth rate of up to 30% could be achieved by 2014 … Pressed on that point, including in answer to me, it was conceded that without passenger services a realistic growth rate would be about 10%, compared with 5% growth with passenger services … Indeed in re-examination it was acknowledged that a 30% growth of freight at CVT was unlikely to happen … Mr Llewellyn also acknowledged that CVT might not be ideal for the vast majority of air cargo in the UK because of the runway length and the way cargo is consolidated by forwarders around Heathrow … I consider that the noise restrictions imposed by the IPF S106 Agreement could also have some restraining effect on growth in air cargo operations.

Business Aviation

20.80

This is another element of current airport operations which WMIAL would seek to expand in the event of the appeal being dismissed. I accept that CVT already has the essential infrastructure needed for a successful business aviation operation. The requirements are relatively basic: a simple building with easy access to landside car parking, and reasonable access to taxiway and runway is all that is required. At CVT such facilities are already available at Airport West, where passengers have direct access from private waiting lounges to the apron, or directly by car to the aircraft. These facilities are very similar in character to business aviation facilities at BHX [BIA].

20.81

Mr Hind and Mr Rayment both consider that there is considerable potential for expansion of the business aviation operation at CVT … and I take account of Mr Rayment’s extensive experience of this type of operation … In the light of Mr Rayment’s evidence about the type of facilities required, and that of my own observations of the facilities available at CVT, I am persuaded that there is potential for expansion of business aviation operations at CVT. Forecasts of the scale of such growth I regard as much more uncertain: that is borne out by Mr Rayment’s comment that forecasting even to the following day is difficult … and to some extent by the evidence of Mr Hind that passenger services and business aviation do not mix … On that latter point it is implicit that current passenger services operated from the IPF are profitable … and there is no evidence to convince me that passenger services operated from the IPF would cease in the event of the current appeal being dismissed. That appears to be borne out by BIA’s one time interest in acquiring CVT and running it with the IPF … It is also relevant that CVT’s market for business aviation might reasonably be said to be dependent on the relatively closely surrounding business market, which to my mind implies at least an element of limitation. …

Conclusions on Fall Back Position

20.82

I accept that there is potential for growth in freight and business aviation operations if the appeal is dismissed. However, I view with considerable caution suggestions that such growth would be dramatic with severe environmental consequences, bearing in mind that there would be an intention to expand such operations in any event even if the appeal is allowed …, and that a quiet operations policy and an air quality programme were introduced by the IPF S106 Agreement. I can, however, see no basis for the improbable notion that CVT would close if the appeal were dismissed …”

In paragraph 34 of the NPT DL, the Secretaries of State agreed with the Inspector’s reasons and conclusions with regard to the fallback issue, as follows:

“The fall-back position

34.

For the reasons in IR20.77-IR20.81, the Secretaries of State agree with the Inspector that, if the appeal is dismissed, there is potential for growth in freight and business operations (IR20.82). However, given the appellants’ intention to expand such operations in any event if the appeal is allowed, and that a quiet operations policy and an air quality programme were introduced by the Section 106 Agreement accompanying the Interim Passenger Terminal decision, they, like the Inspector, treat with considerable caution suggestions that such growth would be dramatic with severe environmental consequences. They also agree with the Inspector’s view that there is no basis for the notion that Coventry Airport would close if the appeal were dismissed (IR20.82).”

Grounds 7 and 8: The Secretaries of State failed to assess the fallback position at CVT properly and/or without the IPF in operation.

Mr Village accepted that it was appropriate to take Grounds 7 and 8 together, since Ground 8 (the alleged failure to assess the fallback position without the IPF in operation) was not really a freestanding ground but was an extension and/or specific example of Ground 7 (the alleged failure to assess the fallback position properly or at all).

Mr Village submitted that the Inspector and the Secretaries of State fundamentally failed to deal with or understand the nature of the fallback position at CVT that had been expressly articulated by WMIAL in its case, its evidence and in its closing submissions at the inquiry. It was Mr Village’s submission that this fundamental error on the part of the Inspector (and, thus, the Secretaries of State) is evident from the Inspector’s analysis of the fallback position which, Mr Village suggested, is based throughout on the hypothesis that, if planning permission for the NPT was refused, the IPF would continue in operation.

In support of that general criticism of the reasoning and conclusions of the Inspector (and thus the Secretaries of State), Mr Village relied upon the following particular submissions.

Mr Village therefore submitted that, having regard to the matters summarised in the preceding paragraph, the entire basis of the Inspector’s apparent rejection of WMIAL’s case on the fallback position with respect to the cessation of the IPF operation (with the consequential loss of the section 106 package) is inherently flawed and erroneous.

It was Mr Mould’s submission that all that happened on this aspect of the case was that the decision maker (i.e. the Inspector, whose reasoning and conclusions were accepted by the Secretaries of State: see above) was not persuaded by WMIAL’s case and its evidence. Mr Mould maintained that the Inspector’s reasoning is clear and comprehensive. I agree. In my view, these grounds are, in reality, no more than an attempt to reargue the appeal.

As Mr Mould pointed out, the Inspector does not say that he heard no evidence at all that the IPF would not continue – but rather that he heard none that convinced him that this would happen. As it seems to me, that was plainly a conclusion that the Inspector was entitled to come on his consideration of the evidence: see, in particular, the evidence of Mr Savage in cross-examination where he stated that if the appeal were to be dismissed and the IPF remained capped at 0.98mppa, there would be a possibility (my emphasis) of the IPF operation ceasing (see paragraph 5.156 of the NPTIR). I am satisfied that the Inspector’s reasoning makes it perfectly clear why he found that evidence not to be sufficiently persuasive. In my view, there is nothing irrational or unreasonable about that reasoning.

I agree with Mr Mould’s submission that, on a fair reading of the relevant paragraphs of his report, the Inspector did carry out a proper comparison between his view of the fallback position and his judgment of the effects of the NPT. The Inspector concluded, as he was entitled to, that the real fallback position was one in which the IPF continued in operation with its section 106 environmental controls in place. However, he did not suggest that this would continue in perpetuity. Having come to that conclusion, the Inspector went on to reject WMIAL’s fallback argument, i.e. that permission should be granted wholly or largely because the baseline position would be worse (i.e. in effect, because the airport would revert to uncontrolled status upon the closure of the IPF). Again, in my view, that was a conclusion that the Inspector was entitled to reach on the evidence and the reasons that he gave for reaching that conclusion were reasonable, intelligible and adequate.

Finally, as it seems to me, the Inspector was entitled to conclude that the evidence implied that the passenger services operated from the IPF were profitable. In my view, there is no substance in the points raised by Mr Village and summarised above in paragraph 143(3) and (4).

Accordingly, for the foregoing reasons, I have come to the conclusion that these grounds of challenge also fail.

Introduction to the Pollution Grounds. The Inspector came to the conclusion (with which the Secretaries of State agreed) that, notwithstanding the mitigation/compensation package offered and the proposed new Noise Preferential Routes (“NPRs”), the NPT development would add significantly to the loss of amenity already experienced by local residents, particularly at unsocial hours, from the noise of the Thomsonfly passenger aircraft.

Ground 10: The Inspector and the Secretaries of State erred in their approach to the polluting effect of additional flights.

Mr Village referred to paragraph 20.90 of the NPTIR (quoted in paragraph 122 above), with which the Secretaries of State agreed in paragraphs 38 and 39 of the NPT DL (quoted in paragraph 123 above), and submitted that the Inspector’s approach to and assumptions concerning the polluting effect of additional flights were inequitable and flawed and that he had misdirected himself on the question of need for the following reasons.

For his part, Mr Mould suggested that the submissions summarised in the preceding paragraph entirely miss the point of paragraph 20.90 of the NPTIR.

Mr Mould submitted that, on a fair reading of the Inspector’s paragraph 20.90, it is clear that all he was doing in that paragraph was to note that the NPT pollution is caused by services that are already offered and/or are available at BIA, which is a much more sustainable overall operation because of its greatly superior public transport links. I agree with that submission. I also agree that, given the essential burden of the point in the Inspector’s reasoning, there was no need for him to have carried out a full comparison between the two operations as suggested by Mr Village.

Accordingly, for those reasons, I am satisfied that there is no substance in this particular ground of challenge.

Ground 11. The Inspector and the Secretaries of State erred in their assessment of the Noise Impacts of the NPT development.

The Inspector set out the details of his assessment and conclusions with regard to the noise impacts of the proposed development in paragraphs 20.1 to 20.25 of the NPTIR. He expressed his overall conclusion on this aspect of the matter in paragraph 20.26 of the NPTIR, in the following terms:

“Conclusion on Noise

20.26

My overall conclusion on noise is that, notwithstanding the mitigation/compensation package offered, and the new NPRs proposed, the NPT development would add significantly to the loss of amenity local residents already experience, particularly at unsocial hours, from the noise of Thomsonfly passenger aircraft. In my opinion this is an important factor weighing against allowing this appeal.”

In paragraphs 21 to 23 and paragraph 25 of the NPT DL, the Secretaries of State agreed with the Inspector’s reasoning and conclusions, as follows:

“Noise Mitigation and Compensation

21.

For the reasons given in IR20.17 and 20.20, the Secretaries of State agree with the Inspector that the mitigation/compensation package now offered would provide significant benefits.

22.

However, like the Inspector, and despite the improved benefits mentioned in paragraph 21 above, the Secretaries of State remain concerned about the extent to which the loss of residential amenity is mitigated and compensated for (IR20.21). Having regard to paragraph 21 above, and the Inspector’s comments in IR20.21-IR20.23 and IR[2]0.129-IR20-131, they consider that, despite the mitigation/compensation package offered, there would still remain a significant loss of local residential amenity. This loss of amenity would be in addition to the loss already experienced as a result of the Interim Passenger Terminal facility.

23.

The Secretaries of State have had regard to the fact that new Noise Preferential Routes were proposed and were about to be promulgated towards the end of the inquiry (IR20.24). They agree with the Inspector, for the reasons set out in IR20.24, that there is uncertainty about the overall net benefits of the proposed new Noise Preferential Routes, and so these routes should be accorded no weight in assessing the impact of aircraft noise.

…

Conclusions on Noise

25.

Overall, for the reasons given above, the Secretaries of State agree with the Inspector that, notwithstanding the significant benefits of the mitigation/compensation package offered, and the new Noise Preferential Routes proposed, the proposed development would add significantly to the loss of amenity local residents already experience, particularly at unsocial hours, from the noise of Thomsonfly passenger aircraft (IR20.26). They agree with the Inspector that this is an important factor weighing against the proposal (IR20.26).”

Mr Village submitted that the Inspector’s analysis (and, thus, that of the Secretaries of State) reveals a number of significant errors of approach that clearly had the effect of adversely distorting his assessment of the noise impacts of the NPT development and, therefore, his overall assessment of the proposal.

In support of that general submission, Mr Village made the following four main points.

Mr Mould submitted that there was nothing in the first point summarised in (1) of the preceding paragraph because, on a fair reading of paragraphs 20.9 to 20.24, it is clear that the Inspector was expressly engaged in an exercise to identify the additional noise impacts attributable to the NPT development. I agree with that submission which is clearly correct.

Furthermore, as it seems to me, it is also clear from the section on noise in the NPTIR that the Inspector did not accept the overall conclusions of WMIAL’s noise witness, Mr Charles. As I have already said, the Inspector was fully entitled to come to such a conclusion. I agree with Mr Mould that the Inspector’s reasons for doing so are reasonable, clear and intelligible. In my view, no further elaboration was required. It is to be noted that, amongst other things, the Inspector reminded himself of how local people were already being disturbed by aircraft operating from CVT (in particular, Thomsonfly operations), based on his own direct experience. He carried out careful site visits to assess for himself the impact of passenger flights, both inside residents’ houses and outside, and how ordinary life was significantly affected by such flights (e.g. by the need to shut windows, even on a hot day): see paragraphs 20.21 to 20.23 of the NPTIR.

As for the revised NPRs, it is clear that the Inspector gave little or no weight to them because he was not convinced of their net benefit. In my view, that was a planning judgment that he was entitled to reach on all the evidence, including that of Mr Riddick. In my view, it was perfectly reasonable for the Inspector to conclude that he was not sure about the overall net benefits of the revised NPRs and, therefore, to attach little or no weight to them.

I also agree with Mr Mould that there is nothing in the point made by Mr Village and summarised in paragraph 160(4) above. I agree that it does not matter that the Inspector noted that most of the objections heard at the inquiry related to the passenger flights. That was, in any event, a perfectly correct statement, although Mr Charles’ analysis of recorded noise complaints showed that most of those related to freight/cargo operations. In my view, that fact simply does not call into question the validity of the Inspector’s overall conclusions and planning judgment on this aspect of the matter.

For those reasons, this ground of challenge also fails.

Ground 12: The Inspector and the Secretaries of State were inconsistent in their treatment of Air Quality and Noise Issues.

Mr Village pointed out that in paragraphs 20.27 to 20.34 of the NPTIR the Inspector set out his analysis of the air quality issues arising from the proposed development. Mr Village pointed out that, as part of that analysis, the Inspector had taken into account the fact that both WDC and CCC had no objection to the proposed development on air quality grounds. Mr Village also stressed that, in doing so, the Inspector had stated that he accorded considerable weight to the stance of WDC and CCC as the two local authorities directly affected by the proposal (see paragraph 20.28 of the NPTIR).

Mr Village then turned to paragraphs 20.2 to 20.26 of the NPTIR in which the Inspector set out his analysis of the noise issues arising from the proposed development of the NPT. He submitted that, in direct contrast to his approach to the air quality issues, the Inspector failed to identify and/or to take into account that both WDC and CCC considered the proposal to be acceptable in terms of noise and, moreover, that the noise assessments and mitigation packages had been subject to scrutiny by experts on behalf of those authorities. Mr Village submitted further that the Inspector had clearly failed to ascribe any weight to the views expressed by WDC and CCC in this context – let alone the considerable weight that he had applied to their views in relation to air quality issues.

Having regard to the foregoing, it was Mr Village’s submission that the Inspector had failed to act consistently in his assessment of the air quality and the noise issues. Further he suggested that it is implicit in the way the Inspector dealt with these matters that he had failed to consider the appropriate weight that should be attached to the views of WDC and CCC – or that he had irrationally chosen not to attach material or appropriate weight to their views with regard to noise issues.

For his part, Mr Mould understandably questioned whether this ground of challenge raised any point of law. He went on to submit that there is a perfectly simple explanation for the approach adopted by the Inspector. So far as concerns air quality issues, Mr Mould pointed out that the Inspector had referred to the stance of the two authorities because of the requirements of national policy guidance (i.e. paragraph 15 of PPS23). However, as Mr Mould emphasised, PPS23 does not apply to noise, which has its own policy guidance (PPG24) and that guidance not contain any such requirement.

Mr Mould submitted further that, in any event, there is absolutely no evidence to suggest that the Inspector and the Secretaries of State were not fully aware of the fact that the two authorities in question did not maintain any noise objections.

I agree with Mr Mould’s submissions on this matter. There is no inconsistency of approach or irrationality as alleged and, accordingly this ground of challenge also fails.

Ground 13: There is an inherent inconsistency in the treatment by the Inspector and the Secretaries of State of the noise and odour issues.

Mr Village referred to paragraphs 20.132 to 20.135 of the NPTIR in which the Inspector considered the appeal proposals in accordance with the development plan and national policies and identified what conflict with policy he considered to arise. In paragraphs 20.133 to 20.135 the Inspector expressed his conclusions in the following terms:

“20.133

I have identified in the course of this section of my report areas where I think there is conflict with national or development plan policies. Here I deal with a number of policy matters not already addressed, and summarise the position as I see it so far as general conformity with policy is concerned.

20.134

I consider there is conflict with policy as follows:

•

In terms of sustainability there is conflict with PPG13, RSS policies T2 and T11F, and the LTP in that there would be over-dependence on use of the car for travel to and from the airport, public transport serving the airport being poor at present and unlikely to improve significantly.

•

The complementary role of CVT would be diminished, in conflict with RSS policy T11F.

•

The development would not represent a modest increase in capacity at CVT, at odds with structure plan policy of support for modest increases in capacity …

20.135

There would be an adverse environmental impact from noise and to a lesser extent from odours of aviation fuel. However, I consider on balance that the mitigation package offered goes a reasonable way towards controlling, mitigating and compensating for those drawbacks.”

In their decision letter, the Secretaries of State expressed general agreement with the reasons and conclusions of the Inspector on issues relating to noise and odours: see, in particular, paragraphs 14 to 25, paragraphs 54 to 58 and paragraph 60 of the NPT DL. However, it is to be noted that there is no reference in the Secretaries of State’s decision letter to paragraph 20.135 of the NPTIR.

Mr Village described the finding made in paragraph 20.135 of the NPTIR (see above) as consistent with WMIAL’s case that issues of noise and odours had been properly and reasonably controlled, mitigated or compensated for through the section 106 Agreement offered with the development proposal.

Mr Village submitted that, despite having made that important finding as to the satisfactory of the mitigation package for noise/odours, the Inspector and the Secretaries of State then subsequently failed to take it into account at all, or acted inconsistently with it, or failed to give any proper, adequate or intelligible reasons for the decisions reached in subsequent parts of the Inspector’s report, in particular in the following paragraphs of the NPTIR:

“20.148

There would be conflict with PPG24 in terms of disturbance from aircraft noise. Although I accept that the noise mitigation/compensation package now offered represents an improvement on that already in place, I have reservations about its adequacy given the scale of development proposed.

…

20.157

There would be significant adverse impacts in respect of aircraft noise and, to a lesser extent, odours from aircraft exhaust fumes. Despite the improvements compared with the IPF package, I am not persuaded that the mitigation/compensation offered is sufficient to outweigh the harm by reason of noise and general disturbance from increased PATMs which would be caused by this significantly larger scale development.”

See also paragraphs 61 and 62 of the NPT DL (quoted above in paragraph 40), in which the Secretaries of State agreed with the Inspector’s foregoing conclusions.

For his part, Mr Mould submitted that the context for the Inspector’s finding in paragraph 20.135 of the NPTIR and his conclusions in paragraphs 20.148 and 20.157 different. The former relates to the test in the development plan and the latter to overall judgments about the effect of noise and odours in the context of the overall balancing exercise. In my view, that submission is correct. Furthermore, in that regard, it is also important to note that the Inspector does not go further in paragraph 20.135 than to state that the mitigation package “goes a reasonable way towards controlling, mitigating and compensating” for the adverse environmental impacts of the additional noise and odours that would result from the proposed development. As it seems to me, that somewhat qualified acceptance of the benefits of the mitigation package is not necessarily in conflict with the conclusions expressed in paragraphs 20.148 and 20.157 of the NPTIR and I reject Mr Village’s submissions to the contrary effect.

In any event, as Mr Mould pointed out, the NPTIR must be read as a whole. I agree with Mr Mould that the Inspector’s reasoning in that section of his report in which he deals with noise and odours leaves no room for doubt that he has reservations about the effectiveness of the mitigation package and why that should be.

Finally, I agree with Mr Mould’s point that it is important to bear in mind that the decision under challenge is that of the Secretaries of State and, as I have already observed, their decision letter did not incorporate any direct reference to paragraph 20.135 of the NPTIR. There is therefore no reason to conclude that it formed any part of the decision-making of the Secretaries of State on this aspect of the matter.

For all those reasons, therefore, I have come to the conclusion that this ground of challenge also fails.

The Policy Grounds

Ground 14: The Inspector and the Secretaries of State were erroneous, inconsistent or irrational in their interpretation of relevant policies of the Development Plan.

Mr Village referred to paragraph 20.132 of the NPTIR, in which the Inspector accepted that the relevant policies affecting the determination of the NPT proposal had not materially changed since the time of the IPF decision. However, in my view, it is important to quote the entire paragraph to put that concession properly into context, as follows:

“20.132

WMIAL state quite correctly that there has been no change in policies since the IPF development was found, on its merits, to be in accordance with the development plan. That applies equally to national policies. However, the proposed NPT development now has to be assessed on its own merits. I have already indicated my view that the NPT is a “different animal” from the IPF …: in particular it is of substantially greater scale. I see no reason in principle, therefore, why a different decision on development plan and national policy conformity cannot be reached in the present case.”

In paragraph 54 of their decision letter, the Secretaries of State agreed with the views expressed by the Inspector, as follows:

“Development Plan

54.

The Secretaries of State agree with the Inspector that there has been no change in development plan policies since the decision on the Interim Passenger Facility was made (IR20.132). However, they recognise that the Inspector’s report into the emerging Warwick Local Plan has been published. The Secretaries of State also agree with the Inspector that each case has to be assessed on its own merits, and that the proposed development is of a substantially greater scale than the Interim Passenger Facility (IR20.132).”

Mr Village submitted that it was therefore self-evident that it was incumbent upon the Inspector and the Secretaries of State to adopt the same interpretation to those policies that had been applied to the IPF decision, in the absence of any clear and properly explained reason to the contrary that justified any inconsistency. However, it was Mr Village’s contention that the Inspector and the Secretaries of State had failed to act consistently, and/or had interpreted the policies erroneously, and/or had failed to consider relevant arguments or provide proper, adequate and intelligible reasons and/or had acted irrationally in their approach to those policies, in concluding that the proposal was contrary to Policies T2 and T11F of the RSS and policy T12 of the Warwickshire Structure Plan – in contrast to the approach adopted to the IPF, other parts of their decision and the evidence presented to the inquiry.

In support of that general submission, Mr Village relied upon the following principal matters.

Mr Mould referred to the submission summarised in paragraph 186(1)(a) above and submitted that the Inspector was not in error as alleged because he had identified a conflict with policy T11F of the RSS due to the “over-dependence on use of the car for travel to and from the airport, public transport serving the airport being poor at present and unlikely to improve significantly”: see the first bullet point in paragraph 20.134 of the NPTIR, quoted above. I accept Mr Mould’s submission that this finding reflects the Inspector’s main conclusions on sustainability as far as the NPT development is concerned, it is not in conflict with the IPF decision and is a reasonable application of policy T11F to the facts of the case.

As for the submissions summarised in paragraph 186(1)(b)-(d), Mr Mould submitted (correctly, in my view) that the Inspector was not proceeding on the basis of a reading of the policy that required the airport to remain exactly as it was. I agree with Mr Mould that the Inspector’s conclusion is based on a planning judgment that policy T11F is seeking to avoid a conflict with BIA, that the cargo niche operation that CVT currently has achieves that policy aim and that a restriction of that cargo role would represent the beginnings of a conflict with the policy. In my judgment, that is a reasonable interpretation and application of the policy in question and I reject Mr Village’s submissions to the contrary effect.

In my view, there is nothing in the submission summarised in paragraph 186(2) above. I accept that the NPTIR and thus the NPT DL is replete with examples of the differences between the IPF and the NPT. As Mr Mould observed, it is hardly surprising, let alone irrational, for the Inspector to reach a different conclusion in this case, as foreshadowed in paragraph 20.132 of the NPTIR itself. In any event, in view of my conclusions with regard to the challenge in respect of the finding of conflict with policy T11F, this particular challenge is unsustainable.

So far as concerns the submissions summarised in paragraph 186(3)(a)-(d), I agree that the policy expression “a modest increase” requires a sensible interpretation and application. In my view, it is perfectly clear why the Inspector felt that the NPT did not represent a “modest increase” and his reasons for that conclusion are proper, adequate and intelligible. There is nothing in this particular point.

Accordingly, for those reasons, this ground of challenge also fails. As it seems to me, it is a good example of WMIAL seeking to reargue the original appeal.

Ground 15: The Inspector and the Secretaries of State erred in their approach to the Air Transport White Paper.

As to whether the proposed NPT met the requirements of the ATWP, the Inspector expressed the following conclusion in paragraph 20.160 of the NPTIR (with which the Secretaries of State agreed in paragraph 64 of the NPT DL, quoted above):

“20.160

Although the development would make beneficial use of existing airport infrastructure, I have considerable doubts whether it would represent the best use as required by the ATWP, given that it would detract from CVT’s specialist niche role for freight operations, for which the availability of public transport is less important, and would duplicate passenger services already available at a nearby airport much better served by public transport. There is, therefore, a conflict with ATWP policy and this also weighs against the proposal.”

Mr Village pointed out that the nature of the proposed development was considered in detail against the provisions of the ATWP and its general policy principles set out in that document. He submitted that, as part of that assessment, through cross-examination of the various objectors and their witnesses, WMIAL had secured common ground or concessions as to the proper principles expressed in the ATWP, their application to the NPT, the NPT’s compliance with them and (eventually) acceptance that there was no prejudice to BIA’s role as the principal airport: see paragraphs 3.1.1 to 3.1.25 of WMIAL’s closing submissions and paragraph 4.153 of the Details of Claim.

Mr Village submitted that, in reaching the conclusion expressed in paragraph 20.160 of the NPTIR, the Inspector (and the Secretaries of State in paragraph 64 of the NPT DL) had acted inconsistently with the IPF decision, had failed to take account of, or deal with, or give proper reasons for not accepting the common ground and concessions, where relevant, and had acted erroneously or irrationally in purporting to express doubt that use of CVT for the NPT would not make the best use of it, would detract from its specialist niche role for freight operations and would duplicate passenger services available at BIA.

As to the latter aspect of the matter (i.e. the effect on CVT’s specialist niche role for freight), Mr Village submitted that there was not a shred of evidence to support that concern. Furthermore, he contended that, in any event, such a concern was entirely contradictory to the specific findings that WMIAL is likely to expand all aspects of the airport operation, including cargo, if the appeal were to be allowed (paragraph 20.78 of the NPTIR), and that the growth in cargo operations is not likely to be dramatic if the appeal were to be dismissed (paragraphs 20.79 and 20.82 of the NPTIR and paragraph 34 of the NPT DL). Mr Village submitted that, in those circumstances, it was perverse of the Inspector and the Secretaries of State to conclude that allowing the appeal would detract from CVT’s specialist niche role for freight, given the findings that it would continue in any event.

For his part, Mr Mould submitted that the allegation that the Inspector has erred in relation to the NPT’s compliance with ATWP policy is completely unfounded.

I agree with that submission. There is no “inconsistency” with the IPF decision because the two were affected by different material considerations. The Inspector was entitled to take a different view from witnesses and to differ from matters agreed between the parties. The Inspector has given detailed and careful findings and reasons for his conclusions in the NPTIR, with which the Secretaries of State have agreed. I am satisfied that the findings made are ones that were open to the Inspector on his consideration of all the evidence and that the reasons given are proper, adequate and intelligible. I reject Mr Village’s submissions to the contrary effect.

As to the submissions with regard to the NPT detracting from CVT’s niche freight role, I agree with Mr Mould that there is no inconsistency between the Inspector’s conclusion in that regard and the other findings. The Inspector merely found that the NPT would detract from CVT’s niche role for freight operations (not, for example, that the freight operations would cease or be substantially reduced). As Mr Mould observed, all that was required for the Inspector’s finding (and that of the Secretaries of State) was the conclusion on the evidence that, in such circumstances, CVT’s niche role would change to a more generalist range of aviation services, thus detracting from those characteristics that hitherto had provided CVT with its niche role for freight operations. I agree with Mr Mould that this was a reasonable conclusion for the Inspector to reach on the evidence before the inquiry.

Accordingly, for those reasons, I am satisfied that this ground of challenge also fails.

The Procedural Grounds

Ground 16: The Inspector and the Secretaries of State failed to conduct a proper planning balance.

Mr Village referred to paragraphs 20.153 to 20.160 of the NPTIR in which the Inspector carried out a planning balance of the proposal overall. As Mr Village observed, in doing so the Inspector identified benefits, neutral matters and drawbacks.

Mr Village submitted that the Inspector fell into error in carrying out that balancing exercise because he had failed to take into account the significant benefits that would arise from the NPT proposal in terms of airspace. Mr Village contended that these benefits arose because of the introduction of a whole series of measures in conjunction with the proposed passenger operation of the NPT that, it was said, would improve the general airspace environment. In the alternative, Mr Village submitted that the Inspector and the Secretaries of State had failed to deal with, or give any proper reasons for rejecting, WMIAL’s contentions that these measures would provide significant benefits.

The short answer to this ground of challenge is to be found in paragraph 20.156 of the NPTIR, in which the Inspector specifically placed airspace management in the category of neutral matters as part of the balancing exercise, stating as follows (inter alia):

“Neutral Matters

20.156

I consider that no clear cut overriding objections arise in respect of airspace management …”

I agree with Mr Mould that this conclusion reflects the Inspector’s earlier findings and is an entirely rational approach to his conclusions.

In my view, there is no substance in this ground of challenge, which therefore also fails.

Ground 17: The Inspector failedto record evidence given and concessions made at the inquiry: and Ground 19: Irrationality.

As Mr Mould observed, these grounds are parasitic on the earlier grounds. Accordingly, having regard to the conclusion that I have reached with regard to those earlier grounds, it follows that each of these two final grounds also fails.

Conclusion. As I observed at an early stage of this judgment, I consider that there is much force in Mr Mould’s submission that this application is, in its essentials, an attempt to rerun many of the arguments and submissions made at the original appeal. Despite the attractive and persuasive manner in which Mr Village presented this complex and detailed case, I have come to the firm conclusion (for all the foregoing reasons) that this application must be and is hereby dismissed.