Southampton airport runaway extension project survives legal challenge

Out-Law News | 30 May 2022 | 1:35 pm | 6 min. read

A legal challenge raised against Southampton airport expansion plans has been dismissed by the High Court.

Mr Justice Holgate rejected each of the grounds of complaint that campaigners had raised in a judicial review claim against the extension of the airport’s runway and enlargement of a car park at the site.

Planning law expert Richard Griffiths of Pinsent Masons, which acted for Southampton International Airport Limited in the case, said the ruling provides useful guidance on the approach to ‘call in’ by the secretary of state, the approach to cumulatively assessing greenhouse gas emissions, the duties on officers when writing their reports and the approach local planning authorities should take when considering a planning application and its evidence. 

The judicial review claim heard by the High Court was brought against Eastleigh Borough Council (EBC), which granted planning permission for the runway extension in June 2021. This followed a committee meeting that lasted some 20 hours over the course of two days in April 2021.

The decision to grant planning permission was challenged by campaigners on five grounds.

The first ground claimed was that EBC had breached a legitimate expectation not to grant the planning permission until the secretary of state had fully had time to decide whether or not to call in the application to determine himself.

The second ground claimed was that EBC had failed to assess the cumulative effects of greenhouse gas emissions (GHG) from the runway extension in combination with other projects such as proposals at Bristol, Stansted and Leeds Bradford airports.

The third ground claimed was that EBC had misinterpreted the policy at paragraph 11(d) of the National Planning Policy Framework (NPPF), leading it to unlawfully apply the “tilted balance” in favour of granting planning permission. However, EBC had failed to identify the most important policies for determining the application were out of date.

The fourth ground claimed was that EBC acted unlawfully by taking into account an immaterial consideration, namely that refusing planning permission would lead to the closure of the airport.

The fifth and final ground claimed was that EBC did not have enough evidence to conclude that the airport would be operating below an identified break-even point without the runway.

Relevant to the first ground is that whilst most planning applications in England are considered by local planning authorities (LPAs), the secretary of state has powers under planning law to ‘call in’ individual planning applications. When the powers of ‘call in’ are exercised, it generally leads to a planning inspector holding a public inquiry into the proposed development and making subsequent recommendations to the secretary of state on whether they should grant the planning application, or not.

The secretary of state also has discretionary ‘article 31’ powers to issue a direction restricting the grant of planning permission by a LPA, either indefinitely or for a specified period.

In this case, the secretary of state had sought an informal agreement with EBC to delay issuing the planning permission. EBC confirmed in April on its website that it had agreed to the informal request as it was not expected to complete a section 106 agreement spelling out planning obligations for the developers until the middle of May. It was this statement that the campaigners sought to rely on to advance its ‘legitimate expectation’ claim.

In considering the claim, Mr Justice Holgate found that there had been no promise not to grant the planning permission until the secretary of state had decided whether to call in the application. The judge concluded that, in any event, EBC’s website announcement did not contain any “clear, unequivocal promise to that effect which was devoid of relevant qualification”. Though EBC had agreed to give the secretary of state “time” to consider the application, this was linked to the completion of the section 106 agreement.

The judge went on to find that an open-ended commitment to defer the grant of planning permission would have been inconsistent with planning legislation and accordingly incapable of giving rise to a legitimate expectation and that there was “much force” in the airport’s argument that the campaigners had not demonstrated that the principles of fairness could have been breached. 

Richard Griffiths said: “The judge has given an important ruling on how the secretary of state should approach considering whether to call in an application. The secretary of state cannot ask a local planning authority LPA to give an open-ended undertaking not to grant the permission as this would be against the duty of the LPA to consider applications and, potentially, be unfair to the developer. Instead, the secretary of state should use the power that is already available and issue an article 31 direction; this simple procedure avoids uncertainty and is fair to both the developer and those who are seeking a call in.”

The second ground was a complaint under the 2017 Town and Country Planning (Environmental Impact Assessment) Regulations (‘EIA regulations’).

The EIA regulations require an environmental statement to be prepared and submitted alongside certain planning applications and for those statements to include information "reasonably required for reaching a reasoned conclusion on the significant effects of the development on the environment". Case law further elaborates on this requirement and provides that “an environmental statement is not expected to include more information than is reasonably required to assess the likely significant environmental effects of the development proposed, in the light of current knowledge”.

Mr Justice Holgate confirmed that it is for the relevant LPA(s) to determine whether an effect is significant and whether the assessment of significant effects is adequate.

In this case, the EIA relied on guidance published by the Institute of Environmental Management and Assessment (IEMA) on assessing GHG emissions and their significance as part of EIAs. The assessment therefore compared the runway extension’s GHG emissions with UK carbon budgets, the UK aviation emissions forecasts and emissions for EBC. Mr Justice Holgate found that there is “simply no legal merit in the complaint that expressing project emissions as a percentage of a national budget or target does not enable a decision-maker to decide whether those emissions are compatible with achieving that benchmark or whether those emissions are ‘affordable’”.   

Richard Griffiths said: “Mr Justice Holgate has found that there is nothing unlawful in a decision-maker using targets or benchmarks to judge whether the effect is significant or not.  In the context of GHG, having regard to the statutory carbon budgets and national aviation targets was deemed reasonable.”

“The EIA regulations require you to assess the ‘significance’ of an environmental effect. The Regulations do not deal with the acceptability of an effect, which is a matter of judgment for the decision-maker. In this case, the judge found that contextualising emissions against national budgets and aviation forecasts was a rational and reasonable approach and did not breach EBC’s duties under the EIA regulations,” he said.

On the third ground, Mr Justice Holgate 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. Richard Griffiths said: “The judge has made it clear that there is no need for an officer’s report to spell something out in order to satisfy a legal approach. Indeed, the judge made a pointed comment that ‘judicial review is not concerned with awarding marks for the draftsmanship of an officer’s report’.”

On the fourth ground, the airport had not put forward in its application that the airport would close if the runway was not approved. However, the campaigners argued that comments made by councillors in a committee meeting demonstrated that the decision to grant planning permission was based on that risk of closure.

Mr Justice Holgate found that it would not have been immaterial or irrational for a councillor to be concerned about the economic risk to the financial future of the airport which could include risk of closure as financial risk involves a matter of degree. After reviewing selected quotes presented by the campaigners, the judge could not establish that the “general tenor” of the discussion in the committee meeting was that the airport would close. He said that the “evidence which has been provided only serves to demonstrate that an exercise of this kind is inappropriate in a claim for judicial review”.

In respect of the fifth ground, Mr Justice Holgate concluded that it was a matter for EBC, subject to acting reasonably, as to how far it should interrogate the evidence to support an assertion made by the applicant. In this case, the judge considered that EBC’s economic officer had reviewed the evidence and come to a reasoned conclusion as he was entitled to do.