R. v. Secretary of State for the Envirnoment, Transport and Regions exp. Plymouth City Airport Ltd.

Transcript date:

Tuesday, May 16, 2000

Matter:

Court:

Court of Appeal

Judgement type:

Permission

Judge(s):

Ward LJ

IN THE SUPREME COURT OF JUDICATURE C/00/5558

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

(Lord Justice Pill)

Royal Courts of Justice

Tuesday, 16th May 2000

B e f o r e :

LORD JUSTICE WARD

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THE QUEEN

- v -

SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS

Ex parte PLYMOUTH CITY AIRPORT LIMITED Applicant

and

GILBERT W.W. THOMAS

Party Intervening

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(Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171-421 4040

Fax No: 0171-831 8838

Official Shorthand Writers to the Court)

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MR. D. HOLGATE Q.C. (instructed by Messrs Foot Anstey Sargent, Plymouth) appeared on behalf of the Applicant.

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J U D G M E N T

(As approved by the Court)

Crown Copyright1. LORD JUSTICE WARD: This is an application for permission to appeal against the order of Dyson J made on 3rd February 2000, when he dismissed the application of the Plymouth City Airport Limited for an order of certiorari to quash the decision letter of the Secretary of State for the Environment, dated 15th December 1998. That letter certified, pursuant to section 15 of the Compulsory Compensation Act 1973, that runway or apron alterations had been carried out at the applicant's aerodrome in Plymouth. That certificate would stand as conclusive evidence of the facts stated in it. It would have, therefore, a dramatic impact on the ability of the applicants to defend the claims being made against them, not only by the intervenor in this application, Mr. Thomas, but some 197 other local residents, who are complaining that the alterations to the airport entitle them to compensation in the order of £3.1 million. It is, therefore, a matter of great importance to the applicants.

2. The alterations took place in the summer of 1995 in order to accommodate or the better to accommodate two helicopters which the Royal Navy wished to relocate to the airport. The position very briefly is that the airport had at the time two runways, runway 06/24 and runway 13/31. I confess that I had not appreciated, until given help by Mr. Holgate QC, that runway 6/24 had in fact not been operational as a take-off and landing strip save in exceptional circumstances and was mainly used for parking aeroplanes, and that the main take-off and landing strip was 13/21. The decision was taken to add a hardstanding pad in an area marked red on the plan on page 62, which had formerly been used by the Plymouth Flying School for parking light aircraft. As a grassy area it was insufficient to take the Royal Navy helicopters and was thus supported by this additional work.

3. The issue in the case is whether that additional work constituted runway or apron alterations within the meaning of section 9(6) of the 1973 Act; that is to say, under section 9(6)(b), where there is a substantial addition to or alteration of a taxiway or apron, being an addition or alteration whose purpose or main purpose is the provision of facilities for a greater number of aircraft.

4. When the Secretary of State came to consider the matter he directed himself in his decision letter of 15th December 1998 that the proper approach was to consider (a) was this a substantial addition or alteration, and (b) had it as its purpose or main purpose the provision of facilities for a greater number of aircraft? The approach, set out in paragraph 6 of that letter, was this:

"In our view, one of the factors in deciding whether the Ministry of Defence helicopter area was an alteration whose purpose or main purpose is the provision of facilities for a greater number of aircraft, is whether the helicopters would [Mr Holgate emphasises "would" in distinction to "could"] have moved on to the site had the works not been undertaken. If the aircraft would have moved to the airport whether or not the hardstanding was put in place, the work would not have made a difference to the number of aircraft able to use the airport even if the helicopters had arrived after the resurfacing work had been undertaken and then used it. If, however, the work was a prerequisite to the helicopters using the airport, it must be the case that the purpose of the work was to provide facilities for a greater number of aircraft."

5. Mr. Holgate submits that that was a proper and impeccable direction, and he respectfully questions whether Pill L.J. is correct in observing that that stated the case too favourably in favour of the applicant.

6. Be that as it may, the Secretary of State, in dealing with these matters, explained in paragraph 10 that:

"Whilst the helicopters could have operated from the runway, it appears that this was not considered suitable at the time 'for safety and environmental reasons' (Foot and Bowden's letter of 19 October 1998). This is supported by MOD's letter of 26th October 1998. Also, as MOD point out (point 1, letter of 26 October), to use the runway would have, in their opinion, reduced the (operating) capability of the airport; it follows that part of the purpose of constructing the hardstanding area was to increase the capacity of the airport by allowing helicopters to use the airport in addition to the aircraft using the runway."

7. Ground 1 of the appeal is that the Secretary of State misunderstood the effect of that correspondence. When one looks to the solicitors' letter of 19th October, the solicitors were there answering a different question namely, "Why did FOST (the Navy) not make use of Runway 06/24 for their operations in the first place?" They were not answering a question directly dealing with whether or not the construction of the hard apron was a facility for a greater number of aircraft. The answer given was that the applicants required the helicopters to operate from the helicopter pad area for safety and environmental reasons. The position was as explained in paragraph 4.4 of their submission to the Department. In those submissions one sees that the emphasis is on this location being more satisfactory from the environmental standpoint. The head landlords were anxious, as a condition of giving permission, to reduce the environmental impact of the helicopters using the runway 6/24 because of its intrusion into the peace of the inhabitants of the houses adjoining that runway alongside Tavistock Road. Environmental and safety reasons were, therefore, prominent in the decision to use the new apron rather than expose neighbours to additional noise. There were safety factors in addition. In other words, the decision was taken because the new apron would be more suitable than use of runway 6/24. It is not suggested that the runway was wholly unsuitable for use, only that the apron was a preferable solution in the short term. It happens that by January 1997 the apron was used, and thereafter runway 6/24 has been used to park the helicopters.

8. The Secretary of State himself seems to have acknowledged that they misunderstood the letters. One sees that from page 168 in the bundle, when they acknowledged that neither of the letters contained any statement or evidence to the effect that the runway was unsuitable. The Department accepted that it took into account an immaterial consideration and acted irrationally (see sub-paragraph 2b of the proposed consent order to which the Secretary of State was prepared to submit and have his second decision quashed). It seems to me that, if the Secretary of State was of that view himself, then, by that fact alone, there must be an argument that he had been wrong. On the language of the letters I am equally persuaded that it is arguable that he misunderstood the position. Ground 1 is therefore arguable.

9. Ground 2 is advanced on the basis also accepted by the Secretary of State. I see that from page 182 of the bundle, where the Treasury Solicitor wrote on 24th January, saying that:

"... the decision letter does not address the question of the continuous use of Runway 6/24 since January 1997 for FOST operations. In the Secretary of State's view, the decision is therefore flawed."

10. The point here is that, if the runway was capable of being used from January 1997 onwards, and that there had been no other alteration to the facility, and the new apron was no longer being required, it was evidence that from the very beginning the runway could have been used and may well have justified a decision that it would have been used had push come to shove. It seems to me that the judge was arguably wrong to regard that fact as irrelevant, as he held.

11. The third ground of appeal is that the Secretary of State appears in his letter to have relied upon the Ministry of Defence's letter of 26th October 1998. In asking the same question, why use was not made of the runway in the first place, they made the comment:

"Operating from a runway is always the last option. It reduces the capability of the airport (only one landing surface instead of two) and it forces the FOST staff, often dressed in heavyweight rubberised suits to walk across an operating airfield with all the attendant dangers which are even more hazardous at night."

12. The comment there of reducing the capability of the airport was withdrawn in a letter dated 27th November 1998, in which the Ministry said that that may or may not be correct in a theoretical and absolute sense, but the Plymouth City Airport authorities are, of course, the only ones qualified to advise on the capacity, capability and operation of the airport. The point is that the Secretary of State ought to have regard, and appears to have failed to have regard, to the withdrawal of what might be considered a concession. That point also seems to be arguable.

13. Next, it is submitted that he was wrong in his conclusion in paragraph 15 of the decision letter, that the new area "was substantial development". The challenge is that he failed to distinguish between the engineering works which were in themselves substantial, and what is required by section 9(6)(b), namely that the addition to or the alteration of the apron has to be substantial. It is a small point, but it seems to me that it is also open to argument. I noted that the Secretary of State in his decision letter found that part of the purpose of the construction was to increase the capacity. Taken by itself, that would suggest that there was more than one purpose. He did not expressly find that that was the main purpose. But it may be that that could be implied from the whole tenor of the letter.

14. Apart from those arguments, I have been concerned that there may be wider issues of importance which require this court to look at the matter. Not only does a large sum of money rest upon the legality of the Secretary of State's decision letter but, importantly, it is a decision taken on complicated matters of fact, with very little hard evidence to judge those complicated issues by. Moreover, as a matter of public importance, if decisions are taken which are environmentally friendly, it may be harsh then to penalize the airport authority in the considerable claims for compensation that would flow from their work being taken to fall within section 9(6)(b) of the Act. Those matters of public importance of their own deserve an airing in the Court of Appeal. For all these reasons, expressed at great length but only because I have to justify why I take a different view from Pill L.J., who was minded to refuse permission, for my part, I think that the court should have a look at this case and I grant permission accordingly.

Order: Application for permission granted; costs to be costs in the appeal.