Persimmon Homes (South East) Ltd., R (on the application of) v Secretary of State for Transport

A lawfully adopted government policy does not automatically require a continual, proactive review mechanism because it may cause planning blight. The decision-maker must remain ready to reconsider the policy if circumstances indicate that review is appropriate, and must consider relevant representations. Written representations may be sufficient. Fairness requires a hearing or inquiry only in appropriate circumstances, particularly where a statutory framework makes an inquiry the norm. There is no general duty to commission particular research to identify possible changes to policy. Where competing technical and planning considerations can be examined through the statutory planning process, that process may provide the appropriate forum. The decision-maker is not required to obtain further expert advice merely because existing departmental advisers disagree with the claimant’s experts.

The claimant, a consortium member seeking to develop the Crawley North East Sector, challenged the Secretary of State’s failure to establish a mechanism for continual and proactive review of the policy in The Future of Air Transport. The policy safeguarded land for a possible wide-spaced second runway at Gatwick after 2019, as an alternative if a third runway at Heathrow could not proceed.

The claimant accepted that the policy itself was lawful and that any decision whether to review it was reviewable only on conventional public law grounds. It argued that fairness and rationality required proactive research, an independent review mechanism, and a hearing or inquiry to test competing technical evidence concerning alternative runway designs and the resulting planning blight.

1. Application dismissed. The Secretary of State’s approach was neither unfair nor Wednesbury unreasonable. The claimant could make written representations identifying circumstances said to justify an earlier review, and the Secretary of State had acknowledged that he must be ready to review the policy if circumstances indicated that this was the proper course.
2. The Court would not resolve disputed technical evidence or planning judgments on the merits. The relevant question was whether the Secretary of State’s stance was legally unfair or irrational. Written representations were capable of being an adequate means of presenting the case. A hearing or inquiry may be required in some circumstances, but the authority in Binney & Anscombe v the Secretary of State for the Environment and the Secretary of State for Transport was distinguishable because it concerned a statutory framework in which an inquiry was ordinarily required.
3. There was no general duty, arising from fairness, for a decision-maker who had lawfully adopted a policy to commission particular research to determine whether changed circumstances justified amendment. The Secretary of State was entitled to rely on advice from the department’s established technical advisers after considering the claimant’s evidence.
4. The statutory planning process provided an appropriate forum for the claimant to argue that a hybrid runway could satisfy the policy’s objectives, or that any shortfall in capacity was outweighed by other planning advantages. The Article 14 directions prevented the local planning authority from granting permission without authorisation, but did not prevent an appeal against non-determination or a new application followed by an inquiry.
5. The Secretary of State was not required to obtain different independent professional advice merely because his advisers disagreed with the claimant’s experts. The claimant was ordered to pay the defendant’s costs, including evidence provided by the interested party. Permission to appeal was refused.

Not stated in the judgment.