Planning permission – Airport – Claimant applying for permission to construct new passenger terminal – Defendants refusing permission on consideration of inspector’s report – Whether inspector producing flawed report – Whether inspector’s report undermining defendants’ decision – Application dismissed
The claimant owned and operated Coventry Airport. It applied for planning permission for the construction of a new passenger terminal to cater for up to two million passengers per annum, together with associated car parking, expansion of the aircraft apron and improvements to the existing access. The claimant appealed, under section 78 of the Town and Country Planning Act 1990, against the third defendant council’s failure to determine the application within the prescribed period. The first and second defendants jointly dismissed the planning appeal and refused planning permission having considered a report by the appointed inspector and following a public inquiry.
The claimant brought a claim, pursuant to section 288 of the 1990 Act, to quash that joint decision on the ground that the inspector’s report was riddled with manifest errors characterised by repeated and countless failures to deal properly or at all with the extensive evidence that was heard at the inquiry. The claimant acknowledged that the decision under challenge was that of the first and second defendants, not that of the inspector. However, it argued that the inspector’s errors were fundamental and went to the root of his flawed consideration of the appeal proposals and, thus, inevitably infected and fatally undermined the consideration of the appeal by the first and second defendants in reliance upon the report.
Held: The application was dismissed.
An application under section 288 of the 1990 Act was not an opportunity to re-argue the merits of a failed planning appeal. Matters of judgment were for the decision maker, unless the judgment reached was indefensible: R (on the application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 applied.
In order to have regard to a policy, the decision maker must have interpreted it properly. If the decision maker failed properly to understand the policy, the decision was as defective as if no regard had been paid to it. However, it was important to bear in mind that the meaning and application of planning policy was a matter for the decision maker, provided that the meaning was one that could be properly given to the policy in question: EC Gransden & Co Ltd v Secretary of State for the Environment (1986) JPL 519 and Cranage Parish Council and others v First Secretary of State and others [2004] EWHC 2949 (Admin); [2005] 2 P&CR 23 applied.
When weighing up evidence in a planning decision, the inspector and/or the secretary of state were not bound to accept the evidence of expert witnesses, even where there was no contrary evidence: Kentucky Fried Chicken (GB) Ltd v Secretary of State for the Environment [1978] 1 EGLR 139; [1977] 245 EG 332 applied.
The reasons to be given for planning decisions had to be understood in the context of a decision written for knowledgeable parties and should enable the reader to know what conclusions the decision maker had reached on the principal controversial issues in dispute: South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 applied.
The weight to be attached to any particular matter for the purposes of the decision maker reaching a planning judgment was an area with which the court should be wary of interfering. The inspector had not been required to deal with every argument and point made by or on behalf of the claimant at the inquiry. He had set out his reasons clearly on the main point in issue, as had the first and second defendants. On the evidence and in all the circumstances of the instant case, the claimant’s challenge failed on all grounds.
Peter Village QC and James Strachan (instructed by Macfarlanes LLP) appeared for the claimant; Timothy Mould QC and Rupert Warren (instructed by the Treasury Solicitor) appeared for the first and second defendants.
Eileen O’Grady, barrister
