R (Whitehead) v Southend on Sea Borough Council and Anr

Transcript date:

Wednesday, July 27, 2011



Court of Appeal

Judgement type:

Permission and Substantive


Carnwath LJ

Transcript file:

Case No: C1/2011/1273 
Neutral Citation Number: [2011] EWCA Civ 1080

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 27th July 2011


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R ( Whitehead )
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Southend on Sea Borough Council and Anr


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Mr Gregory Jones QC and Ms Rebecca Clutten ( instructed by Richard Buxton Environmental and Public Law ) appeared on behalf of the Applicant.

The Respondent did not appear and was not represented.
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(As Approved )

Crown Copyright © 
Lord Justice Carnwath:

1. This is a renewed application for permission to challenge a decision of the Southend Borough Council granting permission for an extension of the runway to Southend Airport and associated development. It is a major development, and not surprisingly a number of people feel strongly against it although it is said also to have major economic potential benefits. This court is not concerned with either its importance or the planning judgment but solely whether there is an arguable point of law which justifies the intervention of the court.

2. The matter has been considered three times, first by Cranston J on the papers, secondly by HHJ Waksman, who gave a very detailed 14 page judgment, unusually for a case of this kind, and then thirdly in this court by Richards LJ, who again gave an unusually detailed explanation of his reasons for regarding the case as nor realistically arguable.

3. The original claimant, Mrs Millard, has in fact decided not to pursue the case further, but another member of the group, indeed the chairman of the group of which she was a member, has taken up the cudgels and has applied to pursue the appeal in her place. Richards LJ said that he would have been willing to grant permission for that to happen and for an extension of time, had he thought the case to be arguable, but he did not.

4. Against such a background, it has to be a bold advocate who is prepared to suggest to another judge that all those three previous judges were wrong. Mr Jones has made his submissions with force and clarity, but I am afraid I am of the same view as Richards LJ and the other judges.

5. There are two principal points. The first concerns the fact that earlier applications some years before had been considered on the basis that he maximum capacity of this terminal was 300,000 persons per annum whereas in this case the material before the authority appears to have satisfied them that the right figure to adopt was 700,000. Mr Jones argues that it was incumbent upon the officers to inform the members and for the members to take account of the fact that it had been decided on a completely different basis earlier on. He relies heavily on R(Havard) v South Kesteven District Council [2003] EWHC 1373 (Admin).. With great respect to George Bartlett QC who gave the judgment, I see that as a case turning on its own facts, rather than laying down any general principle. Undoubtedly there are judicial dicta in the higher courts which show that consistency is an important objective, and it may in certain circumstances be something which an authority must as a matter of law take into account, but there is no universal principle of law to that effect.

6. Ultimately it is a question of rationality. It is not suggested, as I understand it, that on the material before the authority it was irrational to decide to adopt the 700,000 figure. If that is right, then I agree entirely with HHJ Waksman that the fact that at an earlier stage they had reached a different conclusion on the material then available is neither here nor there. Short of irrationality then frankly what matters is their judgment on the material before them at the time.

7. The second point concerns what is called the fallback position. This is of relevance not only for English planning law, but also in the context of European requirements, in relation to environmental assessment. In considering the significance of the impact of the proposed development, the authority proceeded on the basis of comparison with the fallback position, that being the position which could be assumed in the absence of the development. The argument was that under English law it is enough to consider something as a fallback position if it is a possibility rather than a likelihood, whereas under European law it has to be at least a likelihood. The judge dealt with this matter under in what was called the "likely v possible" argument. Having considered the report and the wording used by the officers, he said :

"It is therefore plain that the officer considered, on the evidence before him, that the scenarios postulated by the development and base line scenarios were likely not merely a possibility. It is impossible to impeach that judgment from a judicial review perspective."

8. On the face of it that seems to me correct. Mr Jones says that this was a wrong interpretation and this court should look at the background material and form its own view. In my view, that is not a sufficient basis for mounting a challenge to the Court of Appeal, in what would in effect be a second appeal. If there were some arguable point of principle, particularly one involving an issue of European law, then it would be appropriate to grant permission, bearing in mind also that this would be the final decision. But where it comes down, not to an issue of general principle, but simply a point as to the interpretation of the wording used by the planning officer's judgment, then it seems to me (as it did to Richards LJ) that the matter should stand on HHJ Waksman's view.

9. There is a further sub-argument of that point, which was not very fully articulated in the earlier papers but it is articulated to an extent in paragraph 92 of the skeleton before me, which I will read:

"...[the airport company's] approach to EIA was flawed in failing to address the likely environmental effects of those developments. [The airport company], in its EIA, cite as an existing baseline projected impacts occasioned by the ‘base case' at a point 20 + years hence. It had as a result plainly failed to assess the likely significant environmental impacts for the periods up to that point. The effects of the ‘without development' case were taken as from Day 1 as being those that would not in fact arise for a 20 year period, with the result that the likely effects on the environment for the initial 20 year period would be underestimated. Thus the result was that the base case is impermissibly heightened thereby minimising the impact for the proposed development. That was impermissibly taken as an existing baseline. The EIA Directive requires an assessment upon the likely environmental effects based on short, medium and long term effects."

10. The trouble with that submission, as it seems to me, is that it turns on a detailed review of the relevant underlying material, which would not be appropriate for the first time at this level. As a general proposition I accept that one should compare like with like. Thus , if one is looking at the permission case, which involves growth over a certain period, and one is comparing it with the non-permission case, one should be assuming growth over a similar period. Whether or not there is an arguable case that the authority failed in that respect it is impossible to judge on the materialat was what was done, it is impossible to judge on the basis of what I have been told. I have been shown an extract from the Planning and Access Statement of October 2009 and I was told by Mr Jones that something Mr Humphreys (for the authority) said in argument before the judge led them to believe that the wrong approach had been taken. I am afraid that is far too tenuous a basis to advance a case for permission to appeak to the Court of Appeal.

11. Finally, there is another argument which was apparently articulated earlier on, but was not pursued before Richards LJ. This relates to what is called "indirect and cumulative impact of the development". This arose from something called the Joint Area Action Plan, which is an evolving plan designed to assess cumulative impacts. What I understand is said is that, while the authority were praying in aid the economic benefits of the development, they did not properly assess the environmental impact of the developments on which those benefits depended, which might well, and probably would in some cases, involve significant impacts within the meaning of the EIA Directive. Again, I was unable to detect a sufficiently formulated point of law which would justify the grant of permission at this level.

12. So for all those reasons, although I fully understand the strong feelings which this development has raised and I fully understand the concerns of those concerned about some aspects of the way it has been dealt with by the authority, there is nothing in my view which would amount to a realistically arguable point of law in this court, or would justify my departure from the clear view formed by the three senior judges who have previously considered this case.

Order: Application refused