Brown v Carlisle City Council & Anor

For environmental impact assessment purposes, a planning application may need to be considered with related works where, in reality, it forms an integral part of an inevitably more substantial development. The authority must address that issue expressly. However, permission may properly be refused where the proposed challenge would serve no practical purpose because any renewed application would inevitably succeed and the related works would in any event require their own assessment. A planning obligation entered into before permission may secure conformity with the development plan for the purposes of the Departures Direction. An authority need not give separate reasons for declining to refer an application where the applicable direction imposes no such duty. An officers’ report is unlawful only where its overall effect significantly misleads the committee on material matters left uncorrected before decision.

The claimant sought permission to apply for judicial review of Carlisle City Council’s grant of planning permission to Stobart Air Limited for a freight storage and distribution facility at Carlisle Lake District Airport. The development was accompanied by an environmental statement. A previous, wider application involving runway and terminal works had been withdrawn. Those works were later addressed through a Town and Country Planning Act 1990 section 106 agreement.

The claimant alleged failures concerning environmental assessment, referral under the Departures Direction, reasons, the accuracy of the officers’ report, and the effect of the section 106 agreement. Permission had previously been refused on paper, and the issue was whether the renewed grounds were arguable and had a real prospect of success.

1. Environmental assessment. It was arguable that the council had failed to consider whether the development was properly to be regarded as an integral part of a larger development including the airside works. The officers’ report and the notice of approval were silent on that issue. The court therefore differed from the earlier refusal of permission on paper, which had assumed that the airside works had been considered not to be integral. R v Swale BC, ex p RSPB and the guidance in Circular 02/99 supported consideration of an integral, inevitably more substantial development, while R (Candlish) v Hastings BC was difficult to reconcile with the reference to cumulative effects in Schedule 4.
2. That arguable flaw did not justify permission. If the section 106 works fell within Regulation 3(2), they would require environmental assessment, including their cumulative effects. Further, the environmental statement for the earlier and substantially wider scheme disclosed no adverse environmental factors. A renewed application would therefore inevitably succeed, making the proposed challenge an empty exercise.
3. Departures Direction. A section 106 agreement entered into before permission may secure that the development accords with the development plan. In that event the development is no longer a departure and referral to the Secretary of State does not arise. The contrary construction would produce the absurd result that an application had to be referred even though its implementation would not offend the development plan. The issue was also academic because the Secretary of State had decided not to call in the application. R (on the application of Cummins) v Camden LBC supported that conclusion.
4. Reasons. The Departures Direction imposed no duty to give reasons for declining referral. Article 22 of the GDPO required a summary of reasons for granting planning permission, not separate reasons for the referral decision. The council had discharged that obligation.
5. Officers’ report and section 106 agreement. Applying the approach in Oxton Farms v Selby District Council, the report did not significantly mislead the planning committee about counsel’s advice. The section 106 agreement expressly imposed obligations concerning the airside works. Grounds 2, 3, 4 and 5 were unarguable, and the application for permission to apply for judicial review was refused.

Permission to apply for judicial review had previously been refused by HHJ Anthony Thornton QC, sitting as a Deputy Judge of the High Court, on 29 June 2009. The renewed application was refused by the Administrative Court.