Air transport — Additional airport capacity — Construction of new runways — White paper — Challenge to lawfulness of decisions — Whether decision-making process flawed — Claims allowed in part
The claimants in the two applications were all affected by, and opponents of, the government’s white paper “The Future of Air Transport”. They variously challenged schemes to expand Heathrow, Stansted and Luton airports on the ground that the process leading up to the publication of the white paper had been seriously flawed and that the conclusions reached were in “material breach” of the process.
In the first action, the claimants submitted that the defendant had acted unfairly in adopting, in chapter 11 of the white paper, policies that had not been foreshadowed in the second consultation document. In the second action, the claimants submitted that the final sentence in para 11.40 of the white paper, which stated that “the new runway would be the wide-spaced runway option presented”, was unfairly prescriptive in the light of the consultation exercise. Both groups of claimants submitted that there was no rational basis for the defendant’s conclusion that the construction of a new runway at Stansted, which was to be followed by a new runway at Heathrow, would be commercially viable. Further, they argued that since the defendant had not consulted upon the proposal that the existing single runway at Luton should be extended, the white paper could not fairly give that proposal any policy support.
Held: The claims were allowed in part.
The overall decision-making process, including progressively more detailed appraisal stages, that had led to the adoption of the policies under challenge was lawful. Moreover, subject to two qualifications, it was not unfair for the defendant to have adopted policies in chapter 11 without further consultation.
Having embarked upon a substantial non-statutory consultation process, the fairness of that process was amenable to judicial review. Had there been a fundamental change in the “landscape” and, therefore, a fundamental difference between that upon which the defendant had consulted and the conclusions and policies that were set out in chapter 11, fairness would have required the defendant to carry out further public consultation before resolving those conclusions and policies. However, in the present case, the landscape presented in the consultation paper had envisaged such changes as had in fact occurred or were foreseeable: Bushell v Secretary of State for the Environment [1981] AC 75, R (on the application of Carton) v Coventry County Council (2001) 4 CCLR 41 and R (on the application of Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin); (2003) 6 CCLR 251 considered.
There was a duty upon any public body engaging in a process of consultation to give sufficient reasons for the relevant proposals, in order to allow consultees to give them intelligent consideration and an intelligent response. Although policy support for the development of a second runway at Stansted 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 upon which the consultation exercise had been conducted, and the role of government policy in the planning and environmental impact assessment (EIA) process, the final sentence of para 11.40 went too far: R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 and 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 applied.
The white paper unfairly conveyed the impression that the proposal to extend the existing runway at Luton had been consulted upon, and that it was supported in policy terms. However, fairness required a clear acknowledgment that, since it had not been consulted upon, any decision as to whether it was a cost-effective approach would have to be the subject of full consultation.
Finally, on the evidence, the government had carefully considered the question of commercial viability. It could not therefore be said that the collective agreement that the proposed new runway would be commercially viable was perverse or that the defendant had failed to take account of relevant considerations.
David Smith and Daniel Kolinsky (instructed by Richard Buxton, of Cambridge) appeared for the claimants in the first application; Tom Hill and Lisa Busch (instructed by the solicitor to Essex County Council) appeared for the claimants in the second application; Richard Drabble QC, Tim Mould and Carine Patry (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister
