Brown v Carlisle City Council

A planning permission contrary to the development plan may be lawful where material planning benefits have a realistic prospect of being achieved and reasonably outweigh the policy conflict. A challenge to planning judgment is subject to the demanding Wednesbury standard. In a borderline case, however, an apparently minor error or omission in the evidence may be material if it could have affected the decision. Planning obligations must be necessary, directly related to, and fairly and reasonably proportionate to the development.

The claimant challenged permission granted by Carlisle City Council to Stobart Air Limited for a freight distribution centre and works upgrading Carlisle Airport. The distribution centre conflicted with the development plan, but the planning committee treated runway renewal, continued airport operation and prospective short- to medium-term commercial passenger services as material benefits.

The claim challenged the section 106 agreement, State aid analysis, compliance with the Habitats Regulations and the adequacy of the environmental statement. The central issue was whether the committee’s decision was lawful in light of the evidence concerning the realistic prospect and financial viability of commercial airport operations.

1. Claim succeeded. The planning permission was quashed.
2. The committee was entitled in principle to weigh planning advantages against conflict with the development plan. The prospect of short- to medium-term commercial airport use, runway upgrading and continued airport operation could amount to material planning benefits. The challenge to that planning judgment was governed by the high Wednesbury threshold.
3. The permission depended on a realistic prospect of commercial use. The committee therefore required reliable evidence on the likely financial performance of the airport. The omission from the financial spreadsheet of likely subsidies required to attract an airline was material. In a decision which was only just favourable, that omission might have tipped the balance.
4. The section 106 agreement, as varied, did not unlawfully amount to buying or selling planning permission. There was a real connection between the freight distribution centre and the airport works. The officer had power to approve a variation implementing the committee’s requirements. No general duty to consult arose, and the claimant suffered no prejudice.
5. The State aid ground failed. State resources and a direct link between the advantage and a reduction, or risk of reduction, in the public budget were absent. The Stobart group was effectively subsidising itself.
6. The Habitats Regulations permitted safeguards to be secured by planning conditions, section 106 obligations, or both. The environmental statement was properly an environmental statement, and its alleged deficiencies did not satisfy the Wednesbury threshold.