Neutral Citation Number:  EWHC 314 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Friday, 18th February 2005
B E F O R E:
MR JUSTICE SULLIVAN
THE QUEEN ON THE APPLICATION OF
(1) LONDON BOROUGH OF WANDSWORTH - Claimant
(2) LONDON BOROUGH OF HILLINGDON - Claimant
(3) ANNE HARDY - Claimant
(4) ROGER WOOD - Claimant
(5) NORMAN MEAD - Claimant
SECRETARY OF STATE FOR TRANSPORT - Defendant
(1) LONDON LUTON AIRPORT LIMITED - Interested Party
(2) BAA PLC - Interested Party
(3) STANSTED AIRPORT LIMITED - Interested Party
(4) HEATHROW AIRPORT LIMITED - Interested Party
(1) ESSEX COUNTY COUNCIL - Claimant
(2) UTTLESFORD DISTRICT COUNCIL - Claimant
(3)HERTFORDSHIRE COUNTY COUNCIL - Claimant
(4) EAST HERTFORDSHIRE DISTRICT COUNCIL - Claimant
(5) NORTH HERTFORDSHIRE DISTRICT COUNCIL - Claimant
THE SECRETARY OF STATE FOR TRANSPORT - Defendant
(1) STANSTED AIRPORT LIMITED - Interested Party
(2) LONDON LUTON AIRPORT LIMITED - Interested Party
(3) BAA PLC - Interested Party
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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 Solicitors) appeared on behalf of the Claimants.
MR T HILL AND MISS LISA BUSCH (instructed by Essex County Council & Others) appeared on behalf of the Claimants.
MR RICHARD DRABBLE QC, MR TIM MOULD and MS CARINE PATRY (instructed by the Treasury Solicitor) appeared on behalf of the Secretary of State for Transport.
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S U M M A R Y J U D G M E N T
(As Approved by the Court)
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1. MR JUSTICE SULLIVAN: This is a summary of the 109 page jugment that has been handed down. The two groups of claimants challenge the policies in Chapter 11 of the White Paper, The Future of Air Transport, which was presented to Parliament by the defendant in December 2003 following an extensive public consultation exercise between July 2002 and the end of June 2003. Chapter 11 deals with air transport policy in the south east of England. The factual and legal background to the claims is set out in paragraphs 1-60 of the judgment.
2. The claimants' underlying complaints were expressed in a number of different ways in their claim forms but they can be grouped under four headings: firstly, the Heathrow challenge; secondly, the Stansted challenge; thirdly, the commercial viability challenge and, fourthly, the Luton challenge.
3. Dealing with these four challenges in turn, in the Heathrow challenge the London Boroughs and the other claimants in the first claim submitted that the defendant had acted unfairly in adopting policies in Chapter 11 which had not been foreshadowed in the consultation exercise. They claimed that what they described as the airports policy "landscape", about which the public had been consulted between July 2002 and June 2003, had been substantially altered by the White Paper in a number of important respects and that these alterations were so substantial that fairness required a further round of consultation before the policies in Chapter 11 could lawfully be adopted.
4. Their arguments are considered in paragraphs 61 to 141 of the judgment. I did not accept these arguments and concluded that there had either been no change to the "landscape" or that the change was a reasonably foreseeable outcome of the consultation process or, where it was not, that the White Paper said that there should be further consultation in any event. I therefore rejected the Heathrow challenge.
5. In the Stansted challenge the Essex/Hertfordshire group of local authority claimants submitted that the policies in Chapter 11 in respect of Stansted Airport, and in particular the final sentence of paragraph 11.40 of the White Paper, were unfairly prescriptive in view of the basis on which the consultation exercise had been conducted. Paragraph 11.40 says this:
"On balance, taking into account all relevant factors, and in the light of the responses to consultation, the Government now supports the development of a second runway at Stansted as the first new runway to be built in the South East. We expect it could be completed by around 2011 or 2012. The new runway would be the wide-spaced runway option presented in the consultation document, as shown on the map below."
That particular wide-spaced runway option would increase the capacity of Stansted by up to 46 million passengers per annum (mppa), giving Stansted a total capacity of up to 82 mppa by 2030. For the purposes of comparison, there is planning approval for up to 25 mppa, and the capacity of the existing runway is 35 mppa. Subject to the question of commercial viability, to which I shall refer in a moment, the Essex/Herts local authorities accepted that the White Paper could fairly include a policy supporting the development of a second runway at Stansted as the first new runway to be built in the South East. In a nutshell, they argued that the final paragraph of 11.40, saying that the new runway would be the wide-spaced runway option presented in the consultation document, was unfairly prescriptive because the consultation exercise had been conducted on the basis that this option, which is described in the judgment as Option 5, was being presented not as the proposed second runway at Stansted but as representative of a second runway at Stansted.
6. It might seem that this is a fine distinction, but the difference in land take between option 5 and some of the options with less capacity at Stansted that were considered in the studies preceding the consultation exercise is measured in hundreds of hectares of countryside. In the balancing exercise as between capacity gain and environmental impact, it is important that the policy in the White Paper in respect of a second runway at Stansted is not unfairly tilted in favour of the former upon the basis of inadequate environmental information.
7. I accepted the local authorities' arguments under this head and upheld the Stansted challenge. It is dealt with between paragraphs 142 and 230 and 259 and 269 of the judgment.
8. In the commercial viability challenge, both groups of claimants submitted that the defendant had either failed to consider whether the proposal to develop a second runway at Stansted as the first new runway in the South East, to be followed by a new runway at Heathrow as soon as possible thereafter, provided stringent air quality limits could be met, would be commercially viable. Alternatively, if the defendant had considered that issue and concluded that such a proposal would be commercially viable, it was submitted that his conclusion was irrational. The consultation process had made it clear that any proposal would have to be commercially viable. I rejected this challenge since the evidence produced on behalf of the defendant, some of it somewhat belatedly and only after earlier requests for disclosure had been refused, demonstrated that the defendant had carefully considered this issue, and while the views of economic experts may differ, the policy in the White Paper could not be said to be irrational. These arguments are dealt with in paragraphs 231 to 258 of the judgment.
9. Lastly, Luton. Both groups of claimants submitted that the White Paper had given the impression in paragraphs 11.88 and 11.89 that a proposal by the airport operators, London Luton Airport Operations Ltd ("LLAOL"), to extend the existing runway rather than build a new runway in substitution for the existing runway had been consulted upon and was being given policy support in addition to one of the options which had been consulted upon. The claimants submitted that this was unfair since, through no fault of LLAOL, the defendant had not consulted on its proposal. Instead of fudging this issue, the White Paper should have acknowledged that there had been no consultation on LLAOL's proposal, and since there had been no consultation it would have to be the subject of consultation before it could be given any policy support. I accepted the claimants' submissions under this head of challenge. The arguments are dealt with in paragraphs 270 to 309 of the judgment.
10. With that summary I have reached at page 108 of the judgment.What I will now do is to read out my overall conclusions in paragraphs 310 to 312:
"310. The applications succeed on the 'Stansted' and the 'Luton' grounds and fail on the 'Heathrow' and the 'Commercial Viability' grounds. Having said that, it must be clearly understood that the court is not concerned with the merits of the policies contained in the White Paper. For those, the Defendant is answerable to Parliament. The question for the court is whether the decision making process which led to the adoption of the policies in Chapter 11 of the White Paper was lawful.
311. Subject to the two qualifications below, the answer to that question is 'Yes'. The overall process, with the progressively more detailed appraisal stages of the South East and East of England Air Services Study, SERAS, followed by an extensive public consultation exercise, was an impressive attempt to grapple with a difficult and complex issue, and to provide a clear policy framework. Subject to the two qualifications it was not unfair for the Defendant to adopt the policies in Chapter 11 without further consultation. He gave very careful consideration to all the relevant material, and it cannot be said that his decision to adopt the policies was irrational.
312. The two qualifications are as follows:
(1) While policy support for the development of a second runway at Stansted as the first new runway in the South East was a fair outcome of the consultation exercise, the statement that it 'would be the wide spaced runway option presented in the Consultation Document' was not. Having regard to the basis on which the consultation exercise was conducted and the role of Government policy in the planning and EIA process the final sentence of paragraph 11.40 of the White Paper was, to mix the transport metaphors, 'A bridge too far'.
The White Paper could fairly support the growth of Luton up to the maximum use of a single full-length runway, but it unfairly managed to convey the impression that LLAOL's proposal to extend the existing runway at Luton had been consulted upon, and that it (in addition to the southern runway option) was supported in policy terms, when fairness required a clear acknowledgement that since it had not been consulted upon, any decision as to whether or not it should have policy support would have to be the subject of full consultation."
The final paragraph of the judgment
"313. In the context of an air transport policy for the UK, or for the South East of England, these are minor qualifications, but from the claimants' point of view they are of considerable local significance. Although the policies in Chapter 11 are interlinked and, to an extent, interdependent, it would be wholly disproportionate, and of no benefit to anyone, to quash Chapter 11, leaving the South East of England without any airports policy. Nor would it be appropriate to simply quash the offending passages, e.g. the final sentence in paragraph 11.40. It would be unfair to LLAOL to delete all reference to its proposal. It is not the court's function to wield a blue pencil, or to re-write paragraph 11.89, or the final sentence of paragraph 11.40. If relief is to be granted it should be declaratory in nature. I see no advantage in attempting to frame specific declarations. This judgment will be available to those responsible for framing the policies in the Regional Spatial Strategy, and to the participants in any future planning inquiry. In these circumstances a declaration in the terms of this judgment should suffice. In any event, I suspect that the Stansted and Luton challenges have largely served their purpose in establishing the basis upon which Option 5 was chosen, and in establishing that LLAOL's option was not consulted upon."