Planning permission – Section 106 agreement in respect of additional works not included in application – Appellant seeking judicial review of approval of planning permission — High Court refusing application — Whether respondent council erring in approach to environmental impact assessment – Whether section 106 agreement ensuring compliance with development plan precluding necessity for referral to secretary of state – Appeal allowed
The interested party held a long lease of Carlisle airport. It applied to the respondent council for planning permission for works, including the replacement and realignment of the main runway and the construction of a new passenger terminal, offices and hangars (the airside works), and a new warehouse and distribution facility. The secretary of state called in the application. The interested party then withdrew it and submitted a new application for reduced works, omitting any proposals for the airside works. An environmental statement was submitted in respect of the effects of the application development.
The respondents considered whether the application departed from the development plan, so as to require a referral to the secretary of state. They found that the application development would accord with the development plan provided that the airside works could also be secured by way of an agreement under section 106 of the Town and Country Planning Act 1990. They also found that it was unnecessary to refer the matter to the secretary of state because the application fell within article 2(2) of the Town and Country Planning (Development Plans and Consultation)(Departures) Direction 1999 as being one under which compliance with the development plan could be ensured by the imposition of conditions. A section 106 agreement was subsequently concluded in respect of the airside works and planning permission was granted for the application development.
The appellant’s application for judicial review of that decision was refused in the High Court: see [2009] EWHC 2519 (Admin); [2009] 42 EG 177 (CS). The appellant appealed. He contended that in considering the environmental impact only of the application development rather than the cumulative effect of that and the section 106 works, the respondents had failed to comply with regulation 3(2) of the Town and Country Planning Environmental Impact Assessment (England and Wales) Regulations 1999 (the EIA Regulations).
Held: The appeal was allowed.
The question as to the cumulative effects of a particular development was one of fact in each case and they might arise notwithstanding the absence of a functional link. It was plain that the respondents did not consider the planning merits of the distribution facility without regard to its cumulative effects.
Considered in isolation, the distribution facility did not accord with the development plan. The respondents regarded the development as a whole as being policy-compliant only because one of the cumulative effects of the development was the delivery of the airport works by way of the section 106 agreement. That agreement did not permit the airport works, nor did it compel the interested party to undertake them, but it did ensure that the distribution facility could not lawfully be built and occupied in isolation but could be developed only if its cumulative effects included the carrying out of the airport works.
It was difficult to see how the interested party’s commitment, in the section 106 agreement, to bring forward the airport works could, on the one hand, have been sufficient to ensure that the development as a whole could be regarded as being policy-compliant for the purposes of the development plan but, on the other hand, have been insufficient to ensure that the bringing forward of the airport works would contribute to the cumulative effects of the development for the purposes of the EIA Regulations: R (on the application of Davies) v Secretary of State for Communities and Local Government [2008] EWHC 2223 (Admin) distinguished.
Although the respondents had highlighted the issue by prior to the application, it had not been addressed in the environmental statement submitted by the interested party and the respondents thereafter failed to consider the implications, for the purposes of regulation 3(2) of the EIA Regulations, of their insistence on a section 106 agreement that would ensure that the lawful development of the distribution facility only if it was developed in conjunction with the airport works.
The section 106 agreement left open the possibility of a completed but unoccupied distribution facility. That possibility might be an unlikely outcome for commercial reasons, but the fact that permission had been granted for the facility would be a relevant factor when deciding whether the cumulative environmental effects of the airport works, including those of the facility, justified a refusal of permission. Since the object of the regulations was to ensure that any cumulative environmental effects were considered before any decision was taken as to whether permission should be granted, an assurance that they would be assessed at a later stage, when a decision would be taken as to whether further development should be permitted, would not, save in very exceptional circumstances, justify a decision not to quash a permission granted in breach of regulation 3(2).
Gregory Jones and Jeremy Pike (instructed by Dickinson Dees LLP, of Newcastle upon Tyne) appeared for the appellant; Timothy Mould QC and James Pereira (instructed by the legal department of Carlisle City Council) appeared for the respondents; Peter Village QC and James Strachan (instructed by Macfarlanes LLP) appeared for the interested party.
Eileen O’Grady, barrister