APPEAL REF: 2032278
PROPOSED INTENSIFICATION OF USE OF EXISTING RUNWAY
CLOSING SUBMISSIONS ON BEHALF OF UTTLESFORD DISTRICT COUNCIL, ESSEX COUNTY COUNCIL AND HERTFORDSHIRE COUNTY COUNCIL
- It is not the function of Closing Submissions to regurgitate a party’s entire case and we have not attempted to do this. In particular, we have not sought to repeat matters set out in our Opening Submissions, although they remain valid in their entirety and I expressly refer you to them and incorporate them by reference into these submissions.
- I hope that you will forgive me for stressing at the outset of these submissions that the issues raised at this inquiry have a profound significance for the communities which we represent, and that they touch upon the lives of residents, workers, lovers of the countryside and of wildlife in a way which mercifully few developments do. Equally, it will not have escaped your notice that UDC has not been alone in voicing its opposition to the proposed development, but that it has been supported by democratically elected Councils across the region (at County, District and Parish level) representing hundreds of thousands of people as well as by statutory consultees such as Natural England, the Environment Agency and English Heritage and bodies with the national standing and expertise such as the National Trust. Additionally, it has been supported by many individuals who have felt sufficiently strongly about the proposals to write to UDC or to the inquiry or to attend in person either to address the inquiry or to follow the proceedings. These individuals are, of course, unpaid and in many cases will have made personal sacrifices in order to make their contribution to the process. UDC and all other parties rely upon you now to make an objective assessment of the evidence which you have heard and to report to the SoS accordingly.
- I emphasise this in the highly unusual circumstances where you have been asked to report to SoS in a fraction of the normal reporting time which would be allowed and where we have been told, unusually in our experience, that “Ministers are taking a close interest” in the case. Even we can feel the hot breath of Whitehall upon your necks - from across the room.
- There can be two possible reasons for this close interest:
- because Ministers are interested from a procedural viewpoint;
- because Ministers are desperate to see their White Paper policy upheld.
- As to the former, this concern might conceivably arise from the scars born by those involved in the interminable T5 inquiry, which is so often held out as an example of why the planning system needs reform. If that this the case, then we hope that you will be able to record in your report that this has been a good example of the public local inquiry system at work, that there has been no abuse of the timetable, and that many local voices have been heard, entirely in accordance with the Aarhus Convention . Indeed, the only significant disruption to the programme arose from the need to postpone consideration of surface access issues in the light of the errors in the TAA, the blame for which BAA has firmly laid at the door of the DfT in its treatment of employment data in the TEMPRO model.
- As to the latter, we have no doubt that the DfT will indeed be hoping to see its White Paper policy upheld and applied. That policy was not, however, formulated on the basis of the evidence and submissions which you have now heard and UDC has every confidence that, where it is necessary, you will be prepared to report to Ministers some uncomfortable home truths - for example about noise and air quality or the absence of any substantial and demonstrable economic gains from the proposed development. Although it will obviously require courage and rigour, we are confident that you and Mr Phillimore do not regard this as a “rubber stamping exercise” for the DfT and that, where necessary, you will, to use the colloquialism, “tell it like it is”. May I also take this opportunity to record publicly the Council’s thanks to you for allowing the cases to be heard in a fair and yet efficient manner at the inquiry.
- I turn now to address the “main issues” in the order in which they were set out in the Notes to the PIM.
- This only arises in the UDC case in the context of substituted RfR No. 8 in respect of Climate Change.
- The DfT issued its Air Transport Progress Report (“ATPR”) [CD/88] in December 2006. At p.13, para. 2.33 and 2.34, it stated that:
“We are also clear that major decisions on increases in airport capacity need to take account of not only their local environmental effects, but also the wider context of aviation’s climate impact…….the Government therefore proposes to introduce a new emissions cost assessment to inform its decisions on major increases in aviation capacity.”
- UDC could only anticipate that such a mechanism would be directed (as the wording suggests) at taking account of climate change impacts, alongside the EIA mechanisms for taking account of “local environmental effects”. It was anticipated that this would also seek to address the lack of progress which has been made with the EU ETS. In UDC’s view, there can be no doubt that imposing an additional throughput of the size of Birmingham Airport on top of the existing Stansted would constitute a “major increase” in capacity.
- Thus, entirely rationally, UDC took the view that a decision on G1 should await the apparently imminent establishment of a mechanism specifically designed to address an important issue arising from the proposed development, namely its climate charge impacts.
- UDC had been told that a consultation on the ECA would take place in the first half of 2007. Eventually, a document was published for consultation during August. UDC will be issuing a consultation response when the inquiry is concluded, but a flavour of what that response is likely to contained can been obtained from UDC’s letter to BAA of 9th October, 2007 [UDC/1/ ].
- In summary, as Mr Harborough explains, UDC is astonished that the proposed ECA is such a damp squib. As presently proposed, it fails entirely to live up to the promise of the mechanism foreshadowed in the ATPR and indeed is manifestly inconsistent in its scope with what was promised in the ATPR. No doubt other consultees will express similar views and it remains to be seen whether ECA will be taken forward in the manner presently proposed. We do, however, note the passages in the consultation document which could almost be directed at this inquiry, perhaps prompted by fears that any meaningful grappling with climate change impacts might be inconvenient for the delivery of G1 and similar proposals.
- Having decided in the ATWP that 95% of unconstrained demand right up to 2030 should be provided for [for figures see ATPR CD/88, paras. 4.10 and 4.11: 465/490mppa x 100], it is difficult to see what decisions on further “major increases” could possibly be contemplated on which ECA could meaningfully bite, if its operation is to be confined to a national level.
- Inevitably, this issue cannot be resolved at the present time, but may need to be the subject of separate submissions direct to the SoS when the consultation on ECA is concluded and the proposals are taken forward in the light of the responses received.
GOVERNMENT POLICY, THE STATUTORY DEVELOPMENT PLAN AND THE EMERGING RSS
- Of course, it would be normal to address the development plan first at this stage, given its statutory primacy, but it is convenient to begin with our submissions on the ATWP.
Role of the ATWP
- It is axiomatic that the ATWP only has a role within the law. It is necessary to remark that it has no statutory basis whatsoever. It is a statement of policy formulated by Ministers advised by their civil servants on the basis (in this case) of a series of largely desk-top studies and a round of public consultation.
- A WP cannot modify or interfere with the operation of statutory processes without legislation being taken through Parliament to achieve this end. Of course, no such course was followed here. Additionally, there is plainly a recognition in the Planning White Paper [CD/376] that the authority of a WP which is a vehicle for a national policy statement is weakened by the absence of Parliamentary scrutiny (and SEA) – as was the case with the ATWP.
- Thus the ATWP has no role in pronouncing on development control decisions. If it were to, then the statutory Town and Country Planning and EIA processes would have been bypassed in an unlawful way. This was expressly acknowledged by Mr Michael Ash in his witness statement as Chief Planner at the ODPM served on behalf of the SoSfT in the Wandsworth case  EWHC 20 (Admin) [CD/342] recorded at para.56 by Sullivan J:
“It is important to recognise that statements of policy (whether at national or regional levels) cannot pre-empt a decision on an application for planning permission.”
20. Additionally, Sullivan J records at para.224 the understanding of Government (expressed by Leading Counsel) that it would be both “possible and legitimate”
to argue at inquiry that the impacts of a proposal (in this case a wide-spaced second runway at Stansted) were such that planning permission therefore should be refused, “notwithstanding the fact that refusal would frustrate national policy”. This concession can only have been made on instructions and provides a valuable insight into the SoSfT’s own understanding of the role and status of the ATWP. The fact that this submission was not enough to prevent Sullivan J from ruling para.11.40 of the ATWP unlawful is immaterial.
21. It was because the ATWP expressly overreached itself at para.11.40 in pronouncing in respect of Stansted that “the new runway would be the wide-spaced runway option presented…. on the map below” that the Court found that passage to be unlawful. Had the ATWP expressed more than in principle support for maximum use of the London airport runways, then that too would no doubt have been the subject of legal challenge, I submit with a similar result guaranteed.
What, then, does the ATWP settle?
22. It is submitted that, properly construed, the ATWP settled the following issues:
i. the level of unconstrained demand for air travel which the Government is prepared to see met: as set out above, this is confirmed in the ATPR [CD/88] at paras.4.10 and 4.11 as 95% of unconstrained demand (465/490 X 100); thus the Government has effectively committed itself to a policy of “predict and provide” for air travel – less 5%; and
ii. the ways in which the Government would be “willing to contemplate” new capacity coming forward over the next 30 years…. “subject to the land use planning system”: see purpose of ATWP as set out in Consultation Document [CD/113, para.1.5].
23. It will be noted that UDC has not sought to reopen these areas in evidence to the inquiry.
What is not settled by the ATWP?
24. Plainly the TC&P and EIA regimes are unaffected in their operation, but we are fortunate in having express confirmation from the Government as two areas, which are not intended to be “settled” by the ATWP:
i. the economic and environmental impact of a specific development: see Statement of Yvette Cooper to the House of Commons 19th April, 2004 [Hansard extract CD/381, last para.] . Thus it is necessary to examine, for example, the specific economic benefits which are said to arise from a proposal; it will not be enough to rely upon the broad proposition that “airports are good for you”.
ii. the need for any individual proposed development – to be considered in the context of what is said about need in the ATWP: this is confirmed by Mr Ash in his Witness Statement (see above) [CD/382, para.7.17] . It is submitted that in order to balance need with other relevant factors, it is inevitable that the decision-maker must analyse and accord weight to the specific case for any given proposed development.
25. In the light of the above submissions, it is clear that BAA have wholly misunderstood and misinterpreted the effect of the ATWP. They have claimed in evidence and cross-examination that the only matters which are left by the ATWP for the inquiry to consider are “mitigation” and “controls”. This approach is simply not supported by the analysis of the relevant materials set out above.
26. Occasional reliance has been placed upon Sullivan J’s observation [CD/342, para.45] that the nature and scale of the SERAS exercise was “unprecedented". UDC does not quarrel with this as a general proposition. However, it must be remembered that it was seeking to formulate a policy for all the existing airports in England, Wales, Scotland and Northern Ireland for a period to 2030 and several wholly new airports as well. It could only by definition be an extensive exercise; that, of itself, does not, it is submitted, give it biblical authority. Of course, had all the development options to which the ATWP gives broad, in principle support been subjected to environmental assessment prior to inclusion within the ATWP, then the box of SERAS reports would be but a minnow in comparison.
27. As a footnote, the ATWP exercise does not contain a comprehensive analysis of the impacts and benefits of a G1 at Stansted. The maximum use assumptions, for example, anticipate a wholly different mix of business and leisure pax to that which the G1 ES provides (see below). Likewise, the noise analysis does not appear to extend beyond a look at the 57 dB Leq contours.
The statutory development plan
28. Sullivan J appears to anticipate that the ATWP would be “incorporated” into the development plan [CD/342, paras.53, 226]. However, this has not happened and, as UDC understands the planning system, is not likely to happen.
29. Mr Rhodes agreed in XX that no part of the development plan contains a policy allocating Stansted for further development up to and including the maximum use of the existing runway.
30. RSS (RPG9) contains no policies relevant to Stansted.
31. The Structure Plan has a limited number of “saved” policies [see CD/569]. These include policy BIW9, which establishes a list of matters to be examined in order to determine whether a given proposal is acceptable. These include: economic benefits, impacts upon noise pollution levels, environmental conditions (which would encompass air quality) and the adequacy of arrangements for surface access to the site by all means of transport. Where these are not satisfactorily addressed, then a breach of this policy occurs.
32. The Uttlesford Local Plan is of relatively recent date. It is saved until January 2008, although GO-East has issued a protocol which will permit an extension of this period. UDC has applied for such an extension, which would prolong the life of most of its existing LP policies: see notes prepared pursuant to Inspector’s request by Mr Harborough [UDC/1/G&H]. Engagement of the various development control policies is set out in Table 4 of UDC/1A. These policies identify conventional development control criteria which must be satisfied for a development to receive planning permission.
33. In respect of the matters set out in the RfR, UDC considers that issues raised have not been addressed satisfactorily and that SP and LP policy is therefore breached.
34. The SoS PCs [CD76] are still in draft form and are undergoing further review to ensure that the RSS is compliant with the Habitats Directive [CD/384]. The anticipated timetable for publication of the final version of the Plan has slipped on a number of occasions.
35. Having said that, the PCs as drafted do not seek to examine the ATWP in any greater detail than the WP process itself, do not seek to usurp the role of the T&CP/EIA processes and do not seek to carry forward or advance the ATWP policies in any meaningful way. In particular, as Mr Rhodes accepted in XX, there is no “allocation” type policy proposed. Policies ST1 and E14 from the original draft Plan [CD74] have been dropped and will not be replaced. The EiP Panel expressly acknowledge [CD75, para.5.100] that it is not the role of RSS to pre-empt or prejudge the statutory process for a second runway – and the same plainly applies as a matter of principle to G1. Thus we are left with CD76, which simply refers to ATWP, which cannot of itself enhance the weight to be attached to the WP, nor act as a substitute for the normal statutory development control and EIA processes.
THE PROPOSAL AND ITS CONSIDERATION BY UDC
36. The proposed development has been the subject of EIA. This is because both BAA and UDC agree that it is “Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location.”
Indeed, it would remarkable if the contrary were to be asserted. As has been observed on numerous occasions, the development for which pp is now sought is larger in terms of throughput than many of the UK’s most prominent regional airports (such as Birmingham, Edinburgh, and Glasgow).
37. Mr Rhodes accepted in XX that balancing the considerations which arise in this case is a complex exercise which “requires careful thought”. That is precisely what UDC have given it, as Mr Harborough explained, in particular in ReX. He was subjected in XX to a completely unjustified attack on the propriety of the UDC decision making process (local elections etc), notwithstanding that all senior planning officers recommended refusal and certain of the reasons for refusal were expressly supported by statutory consultees such as the Environment Agency and Natural England. When Mr Rhodes came to give evidence, he wisely told me in XX that he made no suggestion of impropriety and did not suggest that Members had been influenced by immaterial planning considerations.