7th October 2019
Reconsider airport decision says independent legal advice
The 2018 Stansted Airport Planning Application should be considered entirely afresh. That’s the verdict of leading planning barrister Paul Stinchcombe QC [Note 1] in an independent legal opinion prepared for Stop Stansted Expansion (SSE). In the interests of transparency the full (25-page) legal advice can be found here.
The QC’s opinion sets out the key precedents in planning law and confirms that Uttlesford District Council (UDC) is lawfully entitled to reconsider the entire Planning Application even if there have been no material changes in circumstances or any relevant new considerations.
However, a number of new material factors which have arisen since the Application was provisionally approved last year mean there is not only an entitlement to reconsider, but an obligation to do so.
The QC’s advice explains that, provided there are good planning reasons, the new Planning Committee could quite lawfully and reasonably reach a different planning judgment from the former Committee who, by the slenderest of margins (the Chairman’s additional casting vote), provisionally approved the Application last November.
It is worth noting that the five members of the former Planning Committee who voted in favour of the expansion plans last year are no longer councillors, whereas the five who opposed it were all re-elected and all continue to serve on the Committee.
Importantly, the legal advice also points out that UDC could support SSE’s High Court challenge [Note 2] for the Planning Application to be treated as a Nationally Significant Infrastructure Project (NSIP). If UDC’s barristers – as well as SSE’s barristers – made representations to the High Court that the Application should be treated as a NSIP, there would be a greater prospect of success and, if the case is won, the responsibility for the Application would automatically transfer to the Secretary of State for Transport thereby removing the risk of a costs award against UDC as well as the costs of a Public Inquiry. [Note 3]
SSE Chairman Peter Sanders commented: “This leading QC’s opinion provides a comprehensive and balanced assessment of the issues and clearly shows that UDC would not only be justified in re-considering the 2018 Stansted Airport Planning Application, but is obliged to do so.”
“Furthermore,” he continued, “we urge UDC to make representations to the High Court for the Planning Application to be treated as a Nationally Significant Infrastructure Project. There is compelling logic for UDC to do so, not least in the interests of local council taxpayers. A successful outcome would remove all risks of a costs award against UDC as well as the costs of a Public Inquiry.”
Note 1: Paul Stinchcombe graduated from Cambridge University with a Double First in Law, and from Harvard Law School with a Masters, having won a Frank Knox Fellowship. He was called to the Bar in 1985 and built up a substantial practice in planning, public and environmental law before becoming an MP in 1997. After returning to the Bar in 2005, he rapidly re-built his practice and was elevated to QC within six years. In 2005, he was elected Visiting Fellow to Cambridge University’s Centre of Public Law.
Note 2: SSE is pursuing a judicial review challenge aimed at forcing the 43mppa planning application to be dealt with nationally rather than locally. The case has been scheduled for a three day hearing before Mr Justice Dove in the High Court from 12th-14th November.
Note 3: The QC’s advice also suggests that UDC should consider writing to both the new Secretary of State for Housing, Communities and Local Government, and the new Secretary of State for Transport, formally requesting the Planning Application to be dealt with at national level. Both Secretaries of State have the statutory powers to do this and it would clearly be to the advantage of UDC to be relieved of the responsibility for determining this problematic Application. It would also remove the risk of UDC – i.e. local residents – incurring the substantial legal costs which could arise in the event of a contested local decision.
FURTHER INFORMATION AND COMMENT