Plymouth City Airport Ltd, R (on the application of) v Thomas & Anor

For the purposes of section 9 of the Land Compensation Act 1973, the statutory purpose of an airport alteration is determined by the real and practical purpose of the person whose decision led to the works. A theoretical alternative facility does not displace evidence that the works were required to accommodate additional aircraft.

Section 9(2) concerns the relevant date for testing a compensation claim. It does not impose a separate statutory but for condition when the Secretary of State determines the purpose of runway or apron alterations, although such reasoning may be appropriate on the facts. Whether an addition or alteration is substantial is assessed using the ordinary meaning of that word and in the light of what was previously present.

Plymouth City Airport Ltd appealed against Dyson J’s dismissal of its judicial-review challenge to a certificate issued by the Secretary of State under section 15(2) of the Land Compensation Act 1973.

The certificate stated that a hardstanding constructed in 1995 for two Royal Navy helicopters was an apron alteration within section 9. Its effect was to establish conclusively the relevant qualifying works and their operative date, leaving compensation issues to the Lands Tribunal. A neighbouring resident, Mr Thomas, defended the certificate after the Secretary of State chose not to do so.

The issues were whether the hardstanding’s purpose was to provide facilities for a greater number of aircraft, whether later use of another runway was material to that purpose, and whether the works were a substantial addition or alteration.

1. Appeal dismissed. The Court of Appeal, in a judgment of the court delivered by Lords Justices Potter, Sedley and Jonathan Parker, upheld Dyson J’s decision and the Secretary of State’s certificate.

2. Section 9(2) of the Land Compensation Act 1973 modifies the relevant date for testing a compensation claim. It does not itself prescribe the test for identifying the purpose of runway or apron alterations under section 9(3) and (6). The Secretary of State may nevertheless use but for reasoning where the facts make it a legitimate means of identifying that purpose.

3. The evidence entitled the Secretary of State to find that the Ministry of Defence constructed the hardstanding to enable its two helicopters to operate from the airport. The relevant question was not whether runway 06/24 was theoretically capable of accommodating them. It was whether, without the hardstanding, use of that runway was a practical option in the mind of the Ministry of Defence. The evidence showed that it was not. The hardstanding therefore had the statutory purpose of providing facilities for a greater number of aircraft.

4. The helicopters’ later use of runway 06/24 was not legally incapable of shedding light on the original purpose. Subsequent events may sometimes illuminate an actor’s initial purpose. On these facts, however, that later use did not assist in answering why the hardstanding had been built in 1995. It was therefore immaterial.

5. The works were substantial within section 9(6)(b). “Substantial” bears its ordinary meaning and requires consideration of what was previously present. The new 0.295-hectare hardstanding was substantial whether viewed relatively or absolutely. The Court left open whether, in another case, the required comparison would extend beyond the immediate site to the aerodrome as a whole.

6. The certificate accordingly remained valid. The appeal was dismissed, with a summary assessment of costs in favour of Mr Thomas; permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Dismissed Plymouth City Airport Ltd’s appeal and upheld the refusal of judicial review.

• High Court (Queen’s Bench Division, Dyson J): Dismissed the challenge to the Secretary of State’s certificate under section 15(2) of the Land Compensation Act 1973.