Town and country planning – Planning policy – Airport – Claimants applying for judicial review of defendant secretary of state’s Airports National Policy Statement designating third runway at Heathrow as preferred scheme for meeting need for increased airport capacity in south-east England – Whether defendant erring in rejecting construction of second runway at Gatwick as alternative solution – Whether defendant acting in breach of Strategic Environmental Assessment Directive – Whether defendant failing to carry out required statutory consultation with open mind – Applications dismissed
Heathrow was the busiest two-runway airport in the world and currently full to capacity with further, unfulfilled demand. It was important to the national as well as the local economy. Whether its capacity should be expanded by constructing a third runway had been a long-standing question of national importance and acute political controversy. The Airports Commission was established to examine the scale and timing of any requirement for additional capacity to maintain the UK’s position as Europe’s most important aviation hub (the hub objective).
The defendant secretary of state designated the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England” (ANPS) a national policy statement, under section 5 of the Planning Act 2008. The ANPS set out the government’s policy on the need for new airport capacity in the south-east of England, and its preferred location and scheme to meet that need, namely a third runway at Heathrow to the north-west of the current runways (the NWR Scheme).
In four applications, the claimants sought to challenge that designation decision by way of judicial review. The claimant in the first action was an individual who appeared in person. The second application was by seven claimants including the London Borough of Hillingdon, in which Heathrow is situated, and four adjacent London Boroughs. The seventh claimant was the mayor of London. The other claimant was a non-governmental organisation concerned with the environment. The third application was by a non-governmental organisation particularly concerned with climate change. The fourth application was by a charity concerned with climate change. The claims were linked and were heard together.
The claimants contended, amongst other things, that: (i) the defendant had acted unlawfully in failing to treat proposals for a second runway at Gatwick (the Gatwick 2R Scheme) as an alternative to the NWR Scheme for the purposes of article 6(3) and (4) of Council Directive (EEC) 92/43 (the Habitats Directive) and there was no evidential basis for the conclusion that the Gatwick 2R Scheme would potentially cause harm to a special area of conservation (SAC) upon which a priority species was present and it could not overcome the test of imperative reasons of overriding public importance; (ii) the defendant failed to provide an outline of the relationship between the ANPS and other relevant plans or programmes; (iii) the defendant failed to identify the environmental characteristics of areas likely to be significantly affected by the ANPS and failed to provide an outline of the relationship between the ANPS and other relevant plans or programmes and to identify the environmental characteristics of areas likely to be significantly affected by the ANPS in breach of article 5(1) and (2) of Council Directive (EC) 2001/42 (the SEA Directive), taken with Annex 1; and (iv) the ANPS was unlawful by reason of the defendant not carrying out the required statutory consultation with an open mind.
Held: The applications were dismissed.
(1) Whether the standard of review was irrationality or proportionality, there was no legal basis for challenging the defendant’s decision to adopt the so-called “hub objective” and/or his assessment that the Gatwick 2R Scheme failed to meet it. On the conclusions reached by the defendant, this was not an issue about the extent to which the Gatwick 2R Scheme would meet the hub objective, which would be a matter of degree or relative attainment of that aim. Rather, the defendant had concluded that the scheme would not meet that policy objective at all. That conclusion was not open to challenge by way of judicial review. The defendant was entitled to decide that a proposal that would threaten the hub objective was not an alternative solution for the purposes of the Habitats Directive. That conclusion too was not open to legal challenge. The Gatwick 2R Scheme had not been ruled out as an alternative at the beginning of the strategic environmental assessment (SEA) process. On the evidence, the defendant was justified in concluding that, even with a second runway, Gatwick would largely remain a point-to-point airport and would attract very few transfer passengers. On the basis of that assessment, Gatwick would be the antithesis of a hub. The decision of the defendant that the Gatwick 2R Scheme was not an alternative solution to the NWR Scheme was not in breach of the Habitats Directive by reason of either: the objectives of increasing airport capacity and maintaining the UK’s hub status being legally erroneous; or the conclusions on the potential habitats impacts of the Gatwick 2R Scheme being reached without any evidence. The detailed explanation provided in a witness statements, together with supporting documents, refuted the allegation that there had been no evidence to support the conclusions reached by the defendant on potential impacts of the Gatwick scheme on the special area of conservation in so far as it went. The contention that there had been no evidence before the defendant to support the conclusion that potential significant effects upon the special area of conservation arising from the Gatwick 2R Scheme could not be ruled out could not be accepted.
(2) Although individual effects on local authority areas had not been separately identified, the cumulative effects of such matters as additional demand for housing and community facilities, together with impacts on open spaces, had been weighed in the balance. The absence of a reference to “cumulative effects” in para (a) of Annex I to the SEA Directive did not mean that an environmental report could not deal with the relationship with a group of other plans in terms of cumulative effects, rather than as impacts on individual plans. It was plain that consequences of that kind (and not just impacts) had been assessed for the NWR Scheme, albeit on a cumulative basis. Essentially, the complaint was limited to those consequences not having been assessed individually for each local authority area and the analysis having been carried out only at a high level. It had become clear that that was a challenge solely to qualitative aspects of the assessment. There was no merit in the complaint. The relevant plans had not been ignored and the relationship with the plans had been addressed. The obligation to do so had been in outline only. It was for the defendant to decide how far the analysis should be taken. Inevitably, the appraisal of sustainability exercise had involved the making of a series of judgments as to how far the analysis should go in the SEA process for the ANPS and at what point matters should be left to environmental impact assessment at the development consent order stage, having regard to article 5(3) of the SEA Directive. The defendant had not failed to comply with the explicit requirement of the SEA Directive to provide an outline of the relationship with other plans. His judgments had not been irrational as regards the content and level of detail of the coverage by the appraisal of sustainability.
(3) Paragraph (c) of Annex I to the SEA Directive required the environmental report to contain information on “the environmental characteristics of areas likely to be significantly affected” by the plan or programme, subject to the qualifications in article 5. The defendant was required to identify those areas which he judged would be likely to be significantly affected by noise. On the material before the court, there could be no legal objection to the use of indicative flight paths as a matter of principle. Even if it was correct that flight paths should be determined on a worst-case basis in order to respect the precautionary principle in the SEA Directive, there would still remain the same difficult judgment for experts to make as to how to predict where such flight paths were likely to be located. It was a matter of degree as to what factors would produce a worst-case analysis, without arriving at something which was unrealistic and not, therefore, a sound basis for decision-making. In any event, it involved an evaluative judgment using predictive techniques and was dependent upon expert technical opinion. That was a subject to which the enhanced margin of appreciation undoubtedly applied. It was a matter of judgment for the defendant, assisted by expert advice, to determine what information had been reasonably required in relation to flight paths, so as to identify areas likely to be significantly affected. On the material before the court, it was impossible to say that the judgment reached by the defendant had been irrational or that there had been a failure to comply with the SEA Directive in that respect. It was inappropriate to ask the court to adjudicate upon technical differences of the nature of noise impacts in an application for judicial review. There was nothing irrational in the defendant’s approach to the selection of noise parameters and there was no failure to comply with the SEA Directive: R (on the application of Mott) v Environment Agency [2016] EWCA Civ 564; [2016] PLSCS 174 applied.
(4) As to the allegation that the defendant did not carry out the required statutory consultation with an open mind, it was important to have the distinction between actual pre-determination and the appearance of pre-determination well in mind, particularly where, as in this case, the challenge related to a consultation process which took place within a statutory framework which entrusted to the defendant the functions of proposing a policy, promoting it through parliament and ultimately deciding whether it should be designated as a statutory national planning statement. The product of consultation had to be conscientiously taken into account in finalising any statutory proposals. Conceptually, where a claimant was unable to show that a secretary of state’s mind was actually closed, the combination of statutory functions might make it more difficult for him to demonstrate that there was nevertheless an appearance of predetermination, by showing a real risk of the secretary of state having proceeded with a closed mind. That risk had to be founded on something more than the operation of the statutory scheme. Actual pre-determination or closed mind involved a finding on the subjective attitude or state of mind of the decision-maker. The risk of pre-determination because of an appearance of a closed mind involved an assessment of that risk by the court. It was often the case in policy-making that the policy-maker did not have to be detached or disinterested as between the possible policy options. In the present case, there was evidence of a strong predisposition to advance the merits of the NWR Scheme. However, they did not go so far as to provide positive evidence that there had been a closed mind, or a real risk of a closed mind, which would not genuinely consider attempts to persuade the defendant to come to a different view. They fell far short of doing so. The ANPS was not unlawful by reason of the defendant’s failure to carry out the consultation with an open mind, or on the basis of actual or apparent bias: Franklin v Minister of Town and Country Planning [1947] AC 87 applied; CREEDNZ Inc v Governor-General [1981] 1 NZLR 172, R (Buckinghamshire County Council) v Secretary of State for Transport [2013] EWHC 481 (Admin); [2013] PLSCS 78 and R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441; [2016] PLSCS 137; [2016] 1 WLR 3923 considered.
The claimant in the first action appeared in person; Nigel Pleming QC, Catherine Dobson and Stephanie David (instructed by Harrison Grant) appeared for the first to sixth claimants in the second action; Ben Jaffey QC, Catherine Dobson, Flora Robertson and Stephanie David (instructed by Transport for London Legal) appeared for the seventh claimant in the second action; David Wolfe QC, Andrew Parkinson and Peter Lockley (instructed by Leigh Day) appeared for the claimant in the third action; Tim Crosland (Director) appeared for the claimant in the fourth action; James Maurici QC, David Blundell, Andrew Byass and Heather Sargent (instructed by Government Legal Department) appeared for the defendant secretary of state; Martin Kingston QC, Robert O’Donoghue QC, Satnam Choongh and Emma Mockford (instructed by DAC Beachcroft) appeared for the interested party (Heathrow Hub Ltd); Charles Banner QC and Yaaser Vanderman (instructed by CMS Cameron McKenna Nabarro Olswang LLP) appeared for the interested party (Arora Holdings Ltd). No other party appeared or was represented.
Eileen O’Grady, barrister
