QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PERSIMMON HOMES (SOUTH EAST) LTD||(CLAIMANT)|
|SECRETARY OF STATE FOR TRANSPORT||(DEFENDANT)|
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MR R DRABBLE QC, MR T MOULD & MISS CARINE PATRY (instructed by TREASURY SOLICITORS) appeared on behalf of the DEFENDANT
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"The reasons for making the Article 14 directions have not altered since the issue of the White Paper and therefore it is appropriate to retain the directions."
"we support development as soon as possible (we expect around 2011/2012) of a wide-spaced second runway at Stansted, with strict environmental controls, as the first new runway to be built in the South East.
we support development of Heathrow provided that stringent environmental limits can be met, including a new runway as soon as possible after the new runway at Stansted (our assessment is that there is a substantially better chance that the limits could be met in the 2015-2020 period);
we have concluded that we should not take action to overturn the 1979 planning agreement that prevented construction of a second runway at Gatwick before 2019;
we believe that there is a strong case on its merits for a wide-spaced second runway at Gatwick after 2019 and that land should be safeguarded for such a runway, in case it becomes clear in due course that the conditions that we wish to attach to our support for the construction of a third Heathrow runway cannot be met;"
That approach is set out in somewhat more detail in respect of Gatwick in paragraphs 11.78 to 11.80:
"11.78 The airport operator expressed the view in their response that the close parallel option put forward in the consultation might not be capable of delivering the additional capacity that had been assumed. The Civil Aviation Authority expressed similar views. We are not able to reach a concluded view on the merits on any of the alternative options put forward by the airport operator, but we recognise that further work on this issue would be needed before a viable proposal for a new close parallel runway could be delivered.
11.79 On balance, we believe that there is a stronger case for the wide-spaced runway option (after 2019) at Gatwick.
11.80 As explained above, we cannot be certain at this stage when, or whether, the conditions attaching to development of a third runway at Heathrow might be met, particularly in relation to air quality. We are also mindful of the uncertainties surrounding longer-term demand forecasts described in Chapter 2. The Government believes that it is sensible for the time being to retain and provide for a suitable alternative option, should this prove necessary. Taking all relevant factors into account, including the strong economic case for additional capacity at Gatwick, we therefore propose to keep open the option for a wide-spaced runway at Gatwick after 2019."
"The strategic framework set out in this White Paper will need to be reviewed periodically given the uncertainties involved in looking ahead over the next thirty years - both in the aviation sector, and more generally. Policies may also need to evolve over time to reflect changing market conditions and expectations. We will carry out such reviews as and when the circumstances require. And we will continue to consult on issues of significance which may affect the policies set out above."
(1) The policy is the only significant obstacle to an early grant of planning permission for the development of CNES as a new neighbourhood. Apart from the policy there is no planning objection to the development proposed by the consortium.
(2) The policy therefore blights the developmental potential of land which the claimants would otherwise be entitled to realise. Since the policy retains the wide-spaced option at Gatwick as a "fall back" in case environmental problems at Heathrow cannot be overcome, it follows that, unless and until the policy is reviewed, that blight will continue for very many years. The claimants are not entitled to receive any compensation for this blight.
(3) There have been a number of material changes since the publication of the White Paper. Those changes are said to include:
(i) revised noise contours published in 2004 would now permit a new neighbourhood development at CNES if there was a close parallel (as opposed to a wide spaced) runway at Gatwick.
(ii) ICAO guidance approved in March 2004 would permit the use of parallel runways 760 metres apart (a 'hybrid' runway). A hybrid runway would have the same (or very nearly the same) capacity as a wide-spaced runway, but would still enable a (somewhat smaller) new neighbourhood development to proceed at CNES.
(iii) Recent technological advances in aviation would improve the capacity and therefore the economics of a close parallel or indeed a hybrid runway, thus reducing the differential in capacity terms between such options and a wide-spaced runway.
(iv) In terms of the need for and supply of land for housing in the region, there is now a greater sub-regional need for the provision of housing at CNES.
"3. Please confirm that a Public Inquiry will be held to assess the justification for, and implications of, reserving land for a close parallel, wide-spaced or other or second runway at LGW, within the next 6-12 months.
4. Alternatively, that in the event that a planning application for the development of the Crawley North East Sector is made in the next 6 - 12 months, that any Public Inquiry held into such an application would include within its remit the determination, in relation to such land, of the issues concerning the justification for a potential second runway at LGW, the safeguarding of land at LGW and the continuation of the Article 14 Direction over such land."
A reply to these questions was requested by 10th March.
"Your clients have sought confirmation that there will be held within the 6 to 12 months a public inquiry into the justification for and implications of safeguarding land for a second runway at Gatwick. The Secretary of State cannot give such confirmation."
That was clearly an answer to question 3. Regrettably, perhaps because of the shortness of time, question 4 remained unanswered. The claimants repeated question 4 in a letter to the Treasury Solicitor dated 12th October 2004. That letter said, so far as is material for present purposes:
"Having regard to the overriding objective of the CPR to deal with cases justly and as far as practicable fairly including the narrowing of issues between the parties, we seek clarification of the following. Please give answers as fully as possible so as to make clear the Secretary of State's case.
1. It is understood that the Secretary of State's position is that there is no reason in the foreseeable future for the government to set in motion any further consultation on its policy for Gatwick. Are our clients to understand that it is the Secretary of State's case that he will not reconsider his preferred and chosen option of a wide-spaced runway at Gatwick, as a result of arguments and new evidence which may be put forward to him in the foreseeable future, during any part of the statutory planning process for the determination of the development plan for the area or otherwise in another forum such as a planning inquiry into development at CNES?
2. We refer to our letter to the Secretary of State dated 3rd March 2004 and the reply from the Treasury Solicitor dated 12th March... What is not expressly answered in any documents served by the Secretary of State in this matter are the questions raised in our letter dated 3rd March 2004 concerning the ability of planning inquiry into CNES proposals to consider matters relating to the choice of wide spaced runway at Gatwick. We refer in particular to our letter dated 3rd March 2004... page 6 question ... 4.... 5. Please may we have answers to these questions too? We do not now seek that such answers as may be given rely upon or assume that a planning application is made or that a public inquiry is convened within the next 6-12 months."
The Treasury Solicitor replied to this letter on 22nd of October 2004:
"1. The Secretary of State's policy of support for a new wide spaced runway at Gatwick is clear and is not contingent upon further work being carried [out] to assess the viability of a new close parallel runway at that airport... [reference is then made to certain passages in the defendant's evidence. It is unnecessary to set them out because this point is now accepted by the claimants]. You are, therefore, correct in your understanding of the Secretary of State's position. He does not consider that there is any reason for him now to review that policy or to undertake any further public consultation in relation to that policy. Nor does he expect the need either to review that policy, or to undertake such consultation, to arise the foreseeable feature. Nevertheless, the Secretary of State acknowledges that, on ordinary public law principles, he must be ready to review his policy in the event that the circumstances arise, or are drawn to his attention, which indicate that to be the proper course of action. He is not presently aware of any reason which might cause him to reconsider his policy of support for a new wide spaced runway at Gatwick, in the context of the statutory planning processes to which you refer in your letter.
2. I refer you to paragraph 7.17 of the Witness Statement of Michael Richard Ash of the Office of the Deputy Prime Minister dated 16 September 2004. Mr Ash states the Government's view that, where need is established by a national policy statement, a planning inspector at a planning inquiry should not have to consider whether a need for the development exists but should consider whether the need identified is outweighed by other factors. The establishment of need for a type of development in a policy statement does not mean an inspector, and ultimately the decision-maker will be precluded from considering the need for the proposed development, but this will be done in the context of what is said about need in the national policy statement. Applying this approach to the scenario which you propose in your letter (and in your earlier letter of 3 March 2004) it would be open to your clients to make the case to a future planning enquiry into proposals for development at the Crawley North East Sector that the need to safeguard land for a wide spaced runway at Gatwick, established by the Air Transport White Paper, was outweighed by such other relevant factors upon which your clients may rely. At a future planning inquiry, it would be open to your clients to make the case that proposed development in the CNES should be permitted to proceed, notwithstanding the fact that to grant such planning permission may frustrate national policy in the Air Transport White Paper. Provided of course that it will be for the responsible Secretary of State (or his appointed Inspector), acting in accordance with his statutory powers and duty, to determine the scope of and procedure to be followed in any future public enquiry into proposed development at the Crawley North East Sector."
(a) does not rule out but expressly acknowledges the possibility that circumstances might justify an earlier review of the policy (the defendant has stated that a review will take place in any event, when a planning application for a new runway at Heathrow has been decided); and
(b) envisages that the claimants (and others) may wish to draw circumstances which are said to justify an earlier review to the defendant's attention.
Although the letter does not say so in terms, the most obvious method of putting material before the defendant would be by way of making written representations. Thus, the claimants are able to advance all of the arguments summarised in paragraph 13 above in as much detail as they wish, to the defendant, in writing.