IMPORTANT COURT OF APPEAL DECISION ON ENVIRONMENTAL IMPACT ASSESSMENT OF ‘CUMULATIVE' EFFECTS

R (Thomas Gordon Brown) v Carlisle City Council and Stobart Air Ltd [2010] EWCA Civ 523

The Court of Appeal has quashed the grant of planning permission for a freight storage and distribution facility at Carlisle airport. Planning permission was sought by Eddie Stobart, the freight haulier.

The local planning authority had required Stobart Air to enter into a section 106 planning obligation to upgrade the existing facilities at the airport, in order that planning permission for the freight storage and distribution facility could be granted. There was no Environmental Assessment of the proposed airport works. A previous application for planning permission (ultimately withdrawn) which included both the freight storage and distribution facility and airport works, had been subject to EIA. The Claimant, an agricultural tenant of land owned by the Council, and whose land would be required for the proposed development, challenged the grant of planning permission.

The Court of Appeal held that the Council had failed to consider whether the proposed airport works, required by the section 106 obligation, would have potential cumulative environmental impacts with the freight storage and distribution centre. It also held that the only rational conclusion would have been that there were potential cumulative effects, and therefore the airport works should have been assessed in an Environmental  Statement addressing the effect of the freight storage and distribution centre, notwithstanding that there was no application for planning permission for the airside works.  Because it found that the airport works should have been considered for their potential cumulative impacts with the freight development, the court declined to express a conclusion on whether the airport works were in fact part of the same ‘project' as the freight development.

The court rejected the argument that there would need to be a ‘functional link' between the freight storage and distribution centre and the airport works, in order that there could be a requirement that the latter works be included in environmental impact assessment of the former. The Court of Appeal declined to exercise its discretion not to quash the planning permission, rejecting the submission that there would in any event be substantial compliance the aims and purposes of the EIA Directive because the airport works would be subject to environmental assessment in due course, if they were substantial enough to be considered ‘EIA Development'. Such an approach was, the court said, contrary to the principle that environmental impact assessment should be carried out at the earliest possible stage; moreover the planning permission, if not quashed, would give the freight storage and distribution centre ‘a foot in the door', and the principle of that development could not be revisited even if later assessment of cumulative impacts might lead to the conclusion that the freight development was unacceptable.

The court also declined to accept an offer of an undertaking from Stobart Air not to commence development of the freight storage and distribution centre until there had been environmental assessment of the airport works; the court held that it would be inappropriate to accept such an undertaking instead of quashing the planning permission, especially where agricultural tenants (including the Claimant) of the land on which the development was proposed had a significant interest in the outcome of the proceedings.

Greogry Jones and Jeremy Pike (instructed by Dickinson Dees LLP) appeared for the Claimant, Thomas Gordon Brown

James Pereira appeared for Carlisle City Council

N.B. This appeal is notable for, among other things, the fact that Counsel for the Claimant, Gregory Jones, made submissions to the court via videolink from Cape Town. Gregory had been stranded in South Africa because of the suspension of air traffic over Europe. Gregory and Jeremy were permitted by the court to communicate with each other via email during the hearing.