Neutral Citation Number:  EWCA Civ 1259
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE SULLIVAN)
Royal Courts of Justice
Tuesday, 27 September 2005
B E F O R E:
LORD JUSTICE BROOKE
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE SEDLEY
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LONDON BOROUGH OF WANDSWORTH and Others
SECRETARY OF STATE FOR TRANSPORT
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(Computer-Aided Transcript of the Stenograph Notes of
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MR DAVID SMITH and MR DANIEL KOLINSKY (instructed by Richard Buxton of Cambridge) appeared on behalf of the Appellants
The Respondent was not represented and did not attend
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J U D G M E N T
(As Approved by the Court)
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1. LORD JUSTICE SEDLEY: For reasons I will give in a moment, I, for my part, would refuse permission to appeal in this case.
2. Before I come to the reasons, however, I would like to hand out two bouquets. One is to the applicants who, through their advisers, have prepared the papers for this court with forethought and economy and placed the bulk of the voluminous materials on a readily accessible disk. If this were done more frequently it would save many hours of court time and would also facilitate the presentation of arguments by the parties. The other is to the judge of first instance, Sullivan J, whose judgment seems to me to be a model of clear and intelligible presentation of a complex history and set of issues. It is for this reason that I do not propose even to attempt to summarise the case: to do so would be to diminish the value of his judgment, which can and should be read in full at  EWHC 20 Admin, or, if preferred, in the judge's own summary at  EWHC 314 Admin. I will take the full judgment as read and go straight to the issues which it is sought, by Mr David Smith for the applicants, to canvass upon an appeal.
3. Although the Government lost before Sullivan J on two significant points, the claimants wish to appeal on the issues of due process on which the government succeeded in resisting their challenge. As formulated in the grounds of appeal, the overarching complaint is that the December 2003 White Paper The Future of Air Transport, by fixing certain key strategies, has pre-empted the outcome of future consultations which it promises. The particular strategies which are identified by the applicant are these:
1 A change from segregated mode (that is landing or take- off, but not both) to mixed mode in order to maximise the Heathrow runways, something the judge accepted would be highly controversial.
2 The adoption of a strategy known as "inverted SERAS option 12" for funding a new runway at Stansted: this is now relied on principally, but not solely, as a form of pressure in favour of mixed mode runway use.
3 The introduction, for the first time, in the White Paper of a sixth Heathrow terminal.
4. It may be convenient to deal with the third issue first. The judge rejected the claim under this head for these reasons:
"135. Fairness cuts both ways. The defendant had to be fair to the London Boroughs, but he also had to be fair to BAA. He could not in fairness have ignored the fact that the BAA had made a proposal for a sixth terminal to the north of the A4 in its consultation response. Suggestions that changes should be made to the 'landscape' are to be expected in any consultation exercise. Indeed, one of the purposes of conducting such an exercise is to elicit such suggestions. Thus the defendant cannot be criticised for mentioning the BAA's proposal. Having mentioned the proposal the defendant has expressly recognised that since this proposal had not been consulted upon and would take more land than allowed for in the consultation options, it should be the subject of further public consultation in its own right. Contrary to the London Boroughs' submission, the Government's support for a (2000m) new runway at Heathrow as soon as possible after the new runway at Stansted, does not depend upon the full potential of that runway being realised as a result of the provision of a sixth terminal to the north of the A4. Against the background that 'the demand for Heathrow is extremely strong, and always likely to be far in excess of its capacity' (para. 11.48), the White Paper expresses the Government's belief that 'there is a strong case for seeking to secure the large economic benefits achievable through the addition of a third runway at Heathrow'. That belief does not depend upon the provision of a sixth terminal to the north of the A4. Whether such provision would be necessary in order to realise the full potential of a third runway, and if so, whether it would be desirable to construct a sixth terminal to the north of the A4, are to be the subject of a further consultation exercise.
136. I can see no unfairness in this approach. The defendant expressly recognises that before such a change could fairly be made to the landscape there would have to be further consultation. Realistically, the London Boroughs could expect no more. Indeed, their submission is not that fundamental changes may not lawfully be made to the landscape, but that if fundamental changes are proposed there should be further consultation. That is precisely what they have been given in respect of BAA's proposal for a sixth terminal to the north of the A4."
5. The grounds of appeal do not, as I understand them, take issue with this so far as it goes, but they assert that the further consultation "will take place against an established policy context of a commitment to the 'best possible use' of existing runways and a commitment to the expansion of Heathrow (subject to environmental conditions being met) without any capacity limit being imposed ..... " The argument is thus that government should be made to withdraw this much of the White Paper and to consult open-mindedly on a sixth terminal before committing itself to any policy position about it.
6. It seems to me that this proposition is anticipated and answered in the passage of Sullivan J's judgment which I have quoted: precisely because it had not been openly canvassed, it will now require separate public consultation. But, as the judge again points out, the larger objectives spelt out in the White Paper do not depend on a sixth terminal. In other words, the remainder of the White Paper sets up no foregone conclusions for the outcome of consultation on a sixth terminal. With this part of the judgment at their elbow, the claimants can, it seems to me, be confident of a genuinely uninhibited consultation on a sixth terminal. The alternative for which Mr Smith was contending this morning, namely a re-opening of the whole consultation in order to evaluate the new proposal, is no doubt open to government, but I do not accept that, in the circumstances analysed so carefully by the judge, it can be legally obligatory upon government.
7. Sullivan J concluded that the Stansted funding option had not come out of the blue but had been a predictable outcome of public consultation which preceded the White Paper. This conclusion is frontally challenged in the grounds of appeal.
8. Over several pages the judge gave his reasons for reaching (in paragraph 158) the following conclusions:
"Against this background, it was reasonably foreseeable that this, or other environmental problems might either prevent altogether, or delay the provision of, additional runway capacity at Heathrow, thus placing either Stansted or Gatwick at risk of being chosen as the location for the first new runway if the Government decided that additional runway capacity in the South East in the 30-year period to 2030 should be provided, and that it should be provided at one of the existing airports, rather than at a new hub airport."
9. It needs, first, to be observed that this is essentially a finding of fact. While fact findings in judicial review cases - conducted, as most are, without oral evidence - are much more readily reviewed on appeal than those arrived at in witness actions, this court will be mindful of the fact that this particular judge of first instance has unrivalled experience and knowledge of planning procedures and was peculiarly well placed to judge what those involved in major public consultations of this kind, with professional advice commonly at their elbow, can reasonably be expected to anticipate and respond to. For my part, I can see no realistic prospect that this court would differ from him on the point.
10. In this situation, any additional pressure generated by the inverted SERAS option 12 proposal in favour of mixed use of runways - it seems to me - has to be lived with. It cannot add to the first ground, to which I now turn.
11. The judge concluded that much the same applied to the emergence of the mixed mode policy as applied to the sixth terminal. Indeed, the phraseology of the White Paper in paragraph 11.66 suggests that mixed mode is less a policy than simply an option for the best use of resources. But because it had not yet been a discrete topic of consultation, the defendant accepted that there must now be such consultation. Sullivan J concluded at paragraph 140 that this met any legal objection on grounds of due process. The claimants, however, assert that such consultation will be boxed in by the "best possible use" policy which has already now been adopted. Mr Smith points out to us that the consequences are anything but matters of detail. The consultation on a throughput at Heathrow of 116 million passengers a year appears to have grown in the White Paper to 135 million if Terminal 6 is built, with another 16 million if mixed mode is adopted.
12. I see the force of this. I understand also the claimant's sense that by deliberately removing mixed mode from the consultation options and then producing it like a rabbit from a hat in the White Paper (though there is no suggestion that this was done deceptively) the government has moved the goalposts. But - as Lord Justice Auld pointed out when he refused permission to appeal on the papers - policy development in such a complex field may well have to be an incremental process. It may be impracticable, or (worse) impossibly confusing, to consult on every possibility at once. I do not doubt that the result, from the point of view of genuinely concerned parties like the present claimants, may have the aspect described in the concluding summary of their skeleton argument:
"9.1 The White Paper emerged from a single round of paper consultation which consciously and deliberately limited the choice of packages and options at each airport. The Consultation Paper consciously excluded potential capacity increments at Heathrow which are only now offered up in the White Paper for consideration in a new and supportive policy context after alternative site(s), demand management and positive intervention have all been ruled out. The demonstrable uncertainty as to whether or not any, and if so, what capacity may or may not emerge at Stansted and in what timescale aggravates the unfairness and pressure at Heathrow. The White paper heralds the provision of 'extra-over' capacity ('yet more runway capacity') at Heathrow as a direct result of the formation of a strategy which leads directly towards those proposals without seeking to involve Consultees in the two-way process of informed consultation on the options (and their consequences) which were being considered for the emergent new strategy at a formative stage. That was demonstrably unfair and unlawful."
13. But the answer is not necessarily to rewind the film by striking down all or part of Chapter 11 of the White Paper and making government start again. It is to recognise, as Sullivan J has done, the impropriety of the procedure at those points where it has fallen short of fairness, but nevertheless to accept that new proposals may legitimately emerge in a White Paper provided that they then become the subject of further consultation. Such consultation will be governed by exactly the same principles of informed and open- minded deliberation as the consultation which preceded the White Paper. I do not accept the claimants' contention that the die has been cast by the White Paper, and I would be surprised if government were to suggest that it has been.
14. For these reasons, which essentially echo those of Auld LJ, I would refuse permission to appeal. Nor would I grant it on the separate ground, which Mr Smith has not developed orally but which is in his written submissions, that because the issues affect - as they undoubtedly do affect - the lives of many thousands of people, this court should in any event consider them. No new principle of law is at stake, such as might make it proper to entertain an appeal which has no realistic prospect of success. There is still much to play for in the consultations and political processes which lie ahead, and the courts remain ready to ensure that the former, at least, are properly and fairly conducted.
15. LORD JUSTICE BROOKE: I agree. The application is therefore dismissed.
Order: Application dismissed