Eastleigh Borough Council has successfully defended its grant of planning permission for an extension to the runway at Southampton Airport. Barristers at 39 Essex Chambers explain how.
In Goesa Ltd, R (On the Application Of) v Eastleigh Borough Council  EWHC 1221, the High Court (Holgate J) dismissed a challenge to the decision of Eastleigh Borough Council to grant planning permission for a 164m runway extension at Southampton Airport.
The decision was challenged on the following grounds:
- The council had breached a legitimate expectation not to issue the planning permission until the Secretary of State had decided whether or not to call in the application for his personal decision under section 77 of the Town and Country Planning Act 1990.
- The council had failed to assess the cumulative effects of greenhouse gas emissions from the proposal in combination with other projects, and had consequently breached its duty under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and failed to take into account an obviously material consideration.
- The council had misinterpreted the policy at paragraph 11(d) of the National Planning Policy Framework (“NPPF”), leading it unlawfully to apply the “tilted balance” in favour of the grant of permission, but without having made the necessary prior finding that the “most important policies for determining the application” were out of date.
- The council had unlawfully taken into account an immaterial consideration, namely that refusing planning permission would lead to the loss of the Airport.
- The council had proceeded upon an insufficient evidential basis before concluding that the Airport would be operating below a break-even point (of 1.2 million passengers per annum) without expansion.
On (1), Holgate J found that there had been no promise not to issue a decision until the Secretary of State had decided whether to call in the application, let alone a clear, unequivocal promise to that effect which was devoid of relevant qualification. That was sufficient to dispose of this ground, but Holgate J went on to find: (i) that an open-ended commitment to defer granting planning permission would have been inconsistent with the planning legislation, and therefore legally incapable of giving rise to a legitimate expectation; and (ii) that (although it was not necessary to decide it) there was “much force” in the argument that the Claimant had not demonstrated that the principles of fairness could have been breached.
On (2), Holgate J found that there was nothing unlawful in the “inevitably broad” judgement reached by the council on the significance of greenhouse gas emissions. Its treatment of the Government’s Beyond the Horizon: The Future of UK Aviation: Making Best Use of Existing Runways policy had been lawful, as had its acceptance of the approach in the Environmental Statement (in line with guidance issued by the Institute of Environmental Management and Assessment) of contextualising emissions against national budgets and aviation forecasts.
On (3), applying Paul Newman New Homes Ltd v SSHCLG  PSTR 1054 and Wavendon Properties Limited v SSHCLG  PTSR 2077, Holgate J 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) of the NPPF.
On (4), Holgate J found that councillors had been entitled to take into account the risk of closure were the application to be refused, but that the “general tenor” of the discussion by councillors was not that the Airport would close were the application refused.
Finally, on (5), Holgate J found that it was a matter for the council (subject to Wednesbury review) as to how far to enquire into the figures put before them in support of the break-even point and that it was impossible to say that the council had acted unreasonably by not requiring any additional independent input or further explanation.
For those reasons the claim was dismissed, and Holgate J refused the Claimant’s application for permission to appeal to the Court of Appeal.