The high court in London Borough of Hillingdon & Ors v The Secretary of State for Transport & Ors [2017] EWHC 121 (Admin) has struck out a judicial review on 30 January 2017 brought by the London Boroughs of Hillingdon, Wandsworth and Richmond, the Royal Borough of Windsor and Maidenhead and Greenpeace.
The judicial review sought to challenge on the decision of the secretary of state on 25 October 2016 to select the Heathrow North West Runway scheme for inclusion in a draft National Policy Statement (NPS)
The coalition of local councils, together with Greenpeace UK and a Hillingdon resident, claimed the decision was unlawful. The group alleged there was a failure to consult residents before going back on from promises that it would never be built.
They also claimed that the government failed to recognise the project’s unlawful air quality impact.
However, the lawyers for the secretary of state for transport argued that the judicial review could not proceed – saying it should not be heard until after the consultation on the National Policy Statement on aviation is published either later this year or early next year.
Mr Justice Cranston struck out the case on the basis that the court had no jurisdiction to hear the claim because of the provision in the Planning Act 2008, which said that proceedings may only be brought in a six-week period that followed once the NPS was adopted, or if later, published.
The coalition said that the 2008 Act has no such time limitations and that, in any event, the decision was made before the Planning Act process started. The judge said that his decision followed from the language of the relevant section of the Act, the legislative purpose and the overall statutory context and history: “Once the Secretary of State adopts and publishes an NPS the court will have jurisdiction to entertain the challenges the claimants advance. For the present this claim must be struck out.”
Interestingly, on 2 February 2017 the secretary of state for transport laid before parliament a draft airports NPS and begun a period of extensive public consultation on the policy proposals. The draft airports NPS sets out the need for additional airport capacity, as well as the reasons why the government believes that need is best met by a north-west runway at Heathrow. It will be interesting to see if the group will attempt another judicial review if and when the NPS is adopted and published.
Martha Grekos is partner and head of planning, Howard Kennedy
