Town and country planning – Planning permission – Legitimate expectation – Defendant granting planning permission to extend airport runway – Claimant applying for judicial review – Whether legitimate expectation that planning permission not issued until secretary of state decided whether to call-in application – Whether defendant failing to assess cumulative effects of greenhouse gases – Whether defendant misinterpreting paragraph 11(d) of National Planning Policy Framework – Whether defendant taking into account immaterial consideration – Application dismissed
The interested party applied to the defendant local planning authority for planning permission for a 164m extension of the existing runway at Southampton International Airport.
The defendant granted the application subject to the completion of an agreement under section 106 of the Town and Country Planning Act 1990. The agreement was completed on 3 June 2021 and the decision notice granting planning permission was issued on the same day.
The claimant company was set up, by a number of residents who opposed the expansion of the airport, as a legal entity to apply for judicial review of the decision to grant planning permission.
The claimant contended that the defendant had: (i) breached a legitimate expectation not to issue the planning permission until the secretary of state had decided whether to call in the application; (ii) failed to assess the cumulative effects of greenhouse gas emissions (GHGs) from the proposal and other projects, in breach of its duty under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the EIA Regulations) and/or failed to take into account a material consideration: (iii) misinterpreted paragraph 11(d) of the National Planning Policy Framework (NPPF) and unlawfully applied the “tilted balance” in favour of granting permission, prior to finding that the most important policies for determining the application were out of date; (iv) unlawfully taken into account an immaterial consideration that refusal of planning permission would lead to the loss of the airport; and (v) concluded on insufficient evidence that the airport would operate below a break-even point without expansion.
Held: The application was dismissed.
(1) A claim to a legitimate expectation could be based upon a promise (or representation) made by a public authority provided that the promise was clear, unambiguous and devoid of relevant qualification. If the promise (or representation) was not made directly to the claimant, the claimant had to show that he fell within a class of persons entitled to rely upon it, or that it was reasonable to rely upon it without more.
If a promise satisfied the tests for a legitimate expectation to arise, the claimant was not required to show that he relied upon that promise to his detriment. But the courts would not give effect to a legitimate expectation if it would require a public authority to act contrary to the terms of legislation. Similarly, a promise by a public body could not amount to a legitimate expectation if that body had no power to do what it had promised.
In the present case, there had been no promise not to issue a decision until the secretary of state had decided whether to call in the application. In any event, an open-ended commitment to defer granting planning permission was inconsistent with the planning legislation, and therefore legally incapable of giving rise to a legitimate expectation.
(2) There was nothing unlawful in the inevitably broad judgment reached by the defendant on the significance of GHGs. The EIA Regulations focused on assessing the significance of an environmental effect. The legislation did not deal with the acceptability of an effect identified by environmental information. That was a matter of judgment for the decision-maker. On the basis of current policy and law, it was permissible for a planning authority to look at the scale of the GHGs relative to a national target and to reach a judgment, which might inevitably be of a generalised nature, about the likelihood of the proposal harming the achievement of that target.
(3) The first trigger for applying the tilted balance in paragraph 11(d) of the NPPF was where the policies which were most important for determining the application were out of date. That necessarily involved an evaluation by the decision-maker of which of the relevant policies in the local plan were the most important, and whether they accorded with current national policy. A policy was not out of date simply because it was in a time-expired plan. Notwithstanding the reference to “policies” in the plural in paragraph 11(d), the tilted balance might apply where there was only one policy in the plan which the decision-maker judged to be important for the determination of an application: Paragraph 11(d) did not say how “importance” was to be assessed. It was a broad matter of judgment left to the decision-maker. Paragraph 11(d) was not akin to a legal rule or principle. It was a policy for practical use in decision-making: Wavendon Properties Ltd v Secretary of State for Housing Communities and Local Government [2019] PTSR 2077; [2019] PLSCS 108 and Paul Newman New Homes Ltd v Secretary of State for Housing Communities and Local Government [2021] PSTR 1054; [2021] PLSCS 5 applied.
In the present case, the court had reached the firm conclusion that there was no positive indication in the officer’s report that the officer had failed to consider which policies were important for the purposes of paragraph 11(d).
(4) One had to consider the general tenor of the councillors’ discussion rather than the individual views expressed by committee members, let alone the precise terminology used. It would not have been immaterial or irrational for a councillor in the present case to be concerned about the economic risk to the financial future of the airport which could include a future risk of closure if the application was refused. There was evidence before the defendant to support that concern. However, the general tenor of the discussion by councillors was not that the airport would close were the application refused. Furthermore, financial risk and vulnerability involved matters of degree, for example, as to the extent of any harm to the business and its timing. Ultimately those were matters of judgment.
(5) It was a matter for the defendant, unless its view was Wednesbury unreasonable, as to how far to enquire into the figures put before them in support of the break-even point. It was impossible to say that the defendant had acted unreasonably by not requiring any additional independent input or further explanation.
David Wolfe QC, Ashley Bowes and Peter Lockley (instructed by Leigh Day) appeared for the claimant; Paul Stinchcombe QC and Ned Helme (instructed by Eastleigh Borough Council) appeared for the defendant; James Strachan QC and Mark Westmoreland Smith (instructed by Pinsent Masons LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Goesa Ltd) v Eastleigh Borough Council