Planning permission – Variation of conditions – Airport – Defendant local planning authority allowing application to vary conditions by increasing permitted number of flights – Whether failing to take into account government policy on reduction of aviation emissions – Whether erring in consideration of noise levels – Claim dismissed
The interested party operated London City Airport. It applied to the defendant local planning authority to vary the conditions of a planning permission to enable it to increase the permitted annual number of flights from 80,000 to 120,000. An association, of which the claimant was the chairperson, oppose the application. In 2008, after considering a report submitted by their officers, the defendants resolved that they were minded to allow the application subject to an agreement under section 106 of the Town and Country Planning Act 1990.
The matter was reconsidered in 2009, for the purposes of which a further report was prepared. That report dealt with submissions that the planning assessment relating to the proposal should be reconsidered in the light of uncertainties raised by the government’s committee on climate change (CCC), which had been asked to advise on a proposed government target to reduce aviation emissions by 2050. The report concluded that government policy on climate change and aviation had not changed in any material way. After balancing government policy advocating the growth of existing airports, as set out in the Air Transport White Paper of 2003, against the adverse environmental consequences of the proposal, the report recommended that the application should be allowed. In July 2009, the defendants allowed the application and made the variations sought, subject to the completion of the section 106 agreement.
The claimant brought judicial review proceedings to quash that decision. She contended that the 2009 report had not taken into account the fundamental change in government policy towards aviation and climate change that had taken place since the 2008 report was issued, as reflected in the parliamentary statements regarding the aviation emissions target. She also argued that the defendants’ consideration of noise levels at the airport had been defective because they had confined consultation to areas around the airport within a “noise contour” of 57dB shown in the environmental statement that accompanied the application.
Held: The claim was dismissed.
(1) Government policy had not changed between 2008 and 2009 usch that it should have been brought to the notice of the defendants’ planning committee in July 2009. The white paper remained the appropriate policy statement. The announcement of a 2050 target for aviation emissions neither expressly nor impliedly created a limit on increased capacity at existing smaller airports in the South East, such as London City Airport. The white paper expressed the need for a comprehensive approach to aviation emissions and referred to the exploration of other options to reduce them in addition to the existing trading scheme. Subsequent parliamentary statements and publications set out a range of measures that could reduce the effect of aviation on climate change, including improved aircraft efficiency and cleaner operating methods; they did not signal a change from the policy of increasing airport capacity in the South East. The fact that the secretary of state had asked the CCC to advise on the best basis for developing the emissions target indicated that the means of achieving that target had not yet been decided. It was not for the defendants to work out a new policy in the meantime. The important questions that arose called for national guidance, not for speculation by a local planning authority as to the effect of a target announced for 2050.
(2) The defendants had not acted irrationally in basing their a decision on noise on scientifically prepared noise contours or in choosing 57dB as an appropriate level for that decision. Their omission from the consultation process of certain surrounding London boroughs that fell outside the 57dB contour did not amount to a breach of their duty under regulation 10(1)(a) of the Town and Country Planning (General Development Procedure) Order 1995 to consult other planning authorities whose areas might be affected by the development.
Nathalie Lieven QC and Sasha Blackmore (instructed by Friends of the Earth’s Rights & Justice Centre) appeared for the claimant; Simon Pickles and Richard Turney (instructed by the legal department of Newham London Borough Council) appeared for the defendants; Neil King QC and James Pereira (instructed by SJ Berwin LLP) appeared for the interested party, London City Airport Ltd.
Sally Dobson, barrister