R (on the application of Ross and another) (on behalf of Stop Stanstead Expansion) v Secretary of State for Transport – Town and country planning – Planning permission – Nationally significant infrastructure project (NSIP) – Second interested party applying for planning permission for new taxiway links and aircraft stands at airport – Defendant secretary of state deciding proposed development not a NSIP subject to approval processes – Claimants applying for judicial review – Whether proposed development involving alteration of runway – Whether proposal being NSIP requiring determination at national level – Application dismissed
The second interested party applied for planning permission for a development at Stansted Airport involving the construction of two new taxiway links and nine additional aircraft stands at four separate locations within the existing footprint of the airport. The proposed development would increase the use of the airport’s single runway and its potential to handle aircraft movements; the planning application included a request for the planning cap of 35 million passengers per annum (mppa) to be increased to 43 mppa.
The defendant secretary of state decided that the development was not a “nationally significant infrastructure project” (NSIP) within sections 23 and 35 of the Planning Act 2008 and so was not subject to the approval processes, including determination at national level. Therefore, the planning application fell to be considered under the Town and Country Planning Act 1990 by the first interested party local authority in whose administrative area the airport lay. While the defendant considered that the proposed works might constitute an “alteration” to an airport within section 23, he concluded that the effects of the expansion would fall below the threshold in section 23(4) and (5). Shortly before making his decision, the defendant published the MBU policy paper for airports on making best use of their existing runways.
The claimants were acting on behalf of the Stop Stansted Expansion (SSE) group which campaigned to ensure that any development of Stansted Airport was sustainable and took due regard of the natural environment, heritage assets and the quality of life of local residents. They applied for judicial review of the defendant’s decision on the grounds that the proposed development was an alteration to a “runway” within section 23(6)(a) and would increase by at least 10 mppa for whom the airport was capable of providing air passenger transport services. Therefore, it would exceed the threshold in section 23(5)(a), on the basis that the word “capable” referred not to the actual or likely new capacity but rather to the capacity which the airport could possibly achieve technically and arithmetically. In any event, the defendant should have exercised his discretionary power under section 35 of the 2008 Act to treat the developments as nationally significant.
Held: The application was dismissed.
(1) The defendant had correctly identified that the works comprised in the planning application were an alteration within the terms of section 23(6). Whilst the works did not directly augment the runway, the definition was framed in terms of “includes” and was clearly capable of capturing improvements to the runway’s linkages of the kind proposed which were designed to increase runway capacity. The statute used the word “includes” and not “means”, and thus the defendant was entitled to conclude that the works proposed were included within those which could constitute an alteration for the purposes of section 23, bearing in mind their purpose in enhancing the capacity of the airport and its runway. Further, the defendant was correct to go on to consider whether or not the proposal fell within section 23(4) and (5).
The language of section 23(5)(a) of the 2008 Act in relation to whether the alteration would “increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services” required the defendant to form a judgment in relation to that question by asking what increase in capacity could realistically be achieved, not what might technically or arithmetically be possible. It required an analysis based on how the infrastructure was likely to perform, not a hypothetical approach assuming speculative figures in relation to each aspect of the calculation of capacity to show what might be possible rather than what was likely to occur in practice. The words “is capable” were to be read in the context of the language of section 23(4) which spoke of the alteration being “expected to have the effect specified in subsection (5)”. The use of the word “expected” was an important qualification which imported the requirement for an assessment grounded in the reality of the capacity which might be achieved, rather than one which took a speculative arithmetical approach to all of the inputs to the calculation. On that basis, the defendant’s interpretation of the statutory test was sound and a reliable basis for taking the decision as to whether or not the proposal was an NSIP.
(2) It was clear that section 35 of the 2008 Act granted a broad discretion to the defendant whether to treat an application for development that did not otherwise meet the definitions for a NSIP as a project which required development consent on the basis of national significance. The claimants had failed to show that the defendant’s judgment reached in the exercise of that broad discretion was unlawful. On the material before him, the defendant could not properly have concluded that the application was part of a wider or larger project which, taken together with that which was before him, required the proposal to be considered a NSIP pursuant to section 35 of the 2008 Act.
The defendant was, lawfully, entitled to reach the conclusion that the carbon emissions caused by the proposed development could be properly regarded as within the scope of the MBU policy and its analysis. That was a conclusion which applied the provisions of the MBU policy which had considered that proposals of this scale would not imperil the achievement of climate change targets in the light of the modelling work which had informed the policy.
The conclusion reached by the defendant that the proposal could be expected to deliver important, but largely local, economic benefits was reasonable and open to him on the material before him.
In all the circumstances, the claimants’ application for judicial review had to be dismissed.
Paul Stinchcombe QC and Richard Wald (instructed by Birketts LLP, of Ipswich) appeared for the claimant; Charles Banner QC (instructed by the Treasury Solicitor) appeared for the defendant; Thomas Hill QC and Philippa Jackson (instructed by Town Legal LLP) appeared for the second interested party; the first interested party did not appear and was not represented.
Eileen O’Grady, barrister
