Administrative law – Local government – Airports – Environment

R (on the application of Hillingdon London Borough Council and others) (claimants) v Secretary of State for Transport (defendant) and Transport for London (interested party): QBD (Admin) (Lord justice Carnwath): 26 March 2010

The claimants (C), a group of local authorities and organisations, applied for judicial review of the defendant secretary of state’s decision to confirm policy support for a third runway and new passenger facilities at Heathrow airport.

The secretary of state had published a white paper on the strategy for the future of air transport over the coming 30 years. The strategy would be subject to continuing review. The paper stated that there were economic benefits to the addition of a third runway at Heathrow, but that the government’s support was conditional on measures concerning climate change, noise and surface transport access to the airport. Following a consultation process the secretary of state informed parliament of his policy support for the third runway and that the conditions could be met. He also outlined environmental targets, which would be monitored by the climate change committee. Meanwhile, the Climate Change Act 2008 had been passed, which imposed statutory targets on the secretary of state. Some of C claimed that with reference to the economic justification, climate change and surface access requirements there were discrepancies between a report by the climate change committee and the figures in the white paper, and that the government should revise its aviation policy. The secretary of state stated that under section 5 of the Planning Act 2008 he would publish a national policy statement on airports that would take account of all the developments relevant to the airport sector. The issue in the case was the determination of the precise status and effect of the policy support decisions.

Held: (1) As statements of government policy on particular issues at particular points in time the white paper and the policy decisions carried weight, but they were not immutable and they could not limit the scope of the permissible debate in relation to a future national policy statement on airports. Although the government was entitled to maintain a favourable approach to the third runway, the secretary of state could not simply stand on the principle of the policy decision in the white paper. In administrative law, no policy could be set in stone, but was to be open to reconsideration in light of changing circumstances. Further, common sense demanded that a policy established before the important developments in climate change policy, symbolised by the Climate Change Act, should be subject to review in the light of those developments. In any event, the Planning Act provided a comprehensive framework for consideration of all the relevant issues, and until the national policy statement under section 5 was concluded, the secretary of state could not limit that debate.

(2) The mechanism used to formulate the aviation policy was that of non-statutory consultation, followed by a policy announcement to parliament which made clear that the practical implementation of the policy would be through a planning application by the airport operator. Therefore, the policy decisions were no more than policy statements without any direct substantive effects, Shrewsbury and Atcham BC v Secretary of State for Communities and Local Government [2008] EWCA Civ 148, [2008] 3 All ER 548 followed. Such statements were susceptible in principle to judicial review, R (on the application of Medway Council) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2516 (Admin), [2003] JPL 583 and R (on the application of Wandsworth LBC) v Secretary of State for Transport [2005] EWHC 20 (Admin), [2006] 1 EGLR 91 applied. However, in the absence of any statutory procedure it would be very difficult to establish procedural impropriety, R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin), [2007] Env LR 29 applied. In addition, given the preliminary nature of the decision, a flaw in the consultation process or failure to take account of material conditions should not be fatal if it could be put right at a later stage. For the court to intervene, there had to be a policy or factual consideration that made a proposal so obviously unacceptable that the only rational course would be to abort it.

(3) C’s complaints about climate change and economic justification did not require court intervention. None of the issues relating to climate change amounted to irrationality, and the economic justification was subject to review in light of the changing circumstances. However, the arguments concerning surface access were different. The secretary of state had already determined that he was satisfied that the access requirements could be met, yet they were a matter for the airport operator as part of a planning application. It was impossible to determine what the secretary of state ultimately understood to be the scope of the access condition, or what, if anything, he had decided about it or the points raised by Transport for London. Most likely he had decided nothing of significance. It followed that C’s criticism of the access requirements decision was justified.

(4) It was doubtful whether a quashing order was appropriate in relation to a statement of policy that had no substantive legal effect at the time, and which would have none under the Planning Act. The preparation of the national policy statement on airports, which the secretary of state had committed to publishing, would involve a review of all the relevant policy issues, including surface access.

Judgment accordingly.

Nigel Pleming QC, Nathalie Lieven QC, David Forsdick, Richard Wald (instructed by Harrison Grant) for the claimants; Jonathan Swift, Karen Steyn, James Maurici (instructed by Treasury Solicitor) for the defendant; Martin Chamberlain (instructed by in-house solicitor) for the interested party.