THE QUEEN (on the application of GOESA LIMITED) v EASTLEIGH BOROUGH COUNCIL

A legitimate expectation requires a clear, unambiguous promise devoid of relevant qualification. A local planning authority cannot create such an expectation by promising, without any time limit, to defer issuing planning permission while the Secretary of State considers call-in. That promise would conflict with its statutory duty to determine the application.

The adequacy of environmental information, the significance of greenhouse gas emissions and the extent of predictive inquiry are matters for the planning authority, reviewable on conventional rationality grounds. Emissions may lawfully be contextualised against national carbon budgets and aviation forecasts which incorporate other airport expansion.

Whether development-plan policies are the most important policies under paragraph 11(d) of the National Planning Policy Framework is a broad planning judgment. An officer’s report must be read fairly and as a whole, without minute legalistic dissection.

The interested party sought planning permission to extend Southampton Airport’s runway and enlarge its long-stay car park. Eastleigh Borough Council resolved to grant permission and issued the decision notice after completion of an agreement under section 106 of the Town and Country Planning Act 1990.

The claimant, representing residents opposed to the expansion, sought judicial review. It alleged that the Council breached a legitimate expectation that permission would not be issued before the Secretary of State decided whether to call in the application. It also challenged the assessment of cumulative greenhouse gas emissions, the application of the tilted balance in paragraph 11(d) of the National Planning Policy Framework, and the Council’s treatment of evidence about the airport’s financial viability and possible closure.

1. The claim for judicial review was dismissed. The Council made no clear and unequivocal promise that it would withhold the decision notice until the Secretary of State had decided whether to call in the application. Its communications promised only sufficient time for consideration and subsequently made clear that permission was intended to issue by the end of May 2021.
2. An unlimited undertaking of the kind alleged would in any event have been ultra vires. The Council remained under a statutory duty to determine the application unless the Secretary of State issued a direction under section 77 of the Town and Country Planning Act 1990 or article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2015. A short, de minimis delay would be different, but an open-ended promise could not found a legitimate expectation.
3. The environmental assessment complied with the Town and Country Planning (Environmental Impact Assessment) Regulations 2017. The significance and adequacy of the assessment were matters of planning judgment, reviewable on conventional Wednesbury grounds. The Council could contextualise the project’s greenhouse gas emissions against national carbon budgets, national aviation forecasts and the national planning assumption. Those forecasts allowed for expansion at the other airports relied upon by the claimant. The Regulations did not require their emissions to be separately added to Southampton’s emissions before comparison with a national benchmark.
4. The Council lawfully applied paragraph 11(d) of the National Planning Policy Framework. Identifying the policies most important for determining an application is a broad, subjective planning judgment. Read fairly and as a whole, the officer’s report treated the airport-specific policy, particularly its prohibition on runway extension, as the critical policy and permissibly treated the other countryside policies as merely relevant.
5. The selected remarks of individual councillors did not establish that the general tenor of the Council’s debate assumed that refusal would cause the airport to close. Concern about financial vulnerability and a future risk of closure was supported by evidence and was a material consideration.
6. A challenge based on insufficient evidence is governed by rationality. The Council was entitled to decide how far to investigate the airport’s break-even analysis and rationally accepted the material and professional advice before it.

This was a first-instance claim for judicial review. Following a renewed application, Lang J granted permission on grounds 1, 3, 4 and 6. The Planning Court dismissed each ground and the claim.