National policy statement – Judicial review – Jurisdiction – Claimants challenging decision to include proposal for third Heathrow runway in draft National Policy Statement (NPS) – Defendant secretary of state applying to strike out claim – Whether court having jurisdiction to hear claimants’ challenge – Application granted
The claimants were local councils around Heathrow Airport, the well-known NGO, Greenpeace, and a local resident. They applied for judicial review of a decision of the defendant secretary of state selecting a proposal for a third runway at Heathrow Airport for inclusion in a draft National Policy Statement (NPS). The application was made on the grounds that the proposal involved a flawed approach to air quality and that the decision was contrary to their legitimate expectations because the government had made repeated promises that there would be no third runway at Heathrow. At the hearing, the claimants were supported by the fourth and fifth interested parties, Transport for London and the Mayor of London, who agreed with the claimants in their challenge regarding air quality.
The defendant applied for an order under CPR rule 3.4(2)(a) striking out the claimants’ claim on the basis that, under the Planning Act 2008, the court had no jurisdiction at present to hear it. The defendant was supported by the second interested party, Heathrow Holdings Ltd, which was represented at the hearing through leading counsel but did not make separate submissions. While accepting that section 13 was not a true ouster clause, the claimants argued that it should be construed in the same strict manner because it purported to exclude the court’s jurisdiction.
Resolution of the jurisdictional issue turned on whether, under section 13 of the 2008 Act, proceedings might only be brought in a six-week period beginning the day after an NPS was adopted or, if later, published. Neither event had yet occurred in this case.
Held: The application was granted.
(1) Section 13 was not to be regarded as akin to an ouster clause. Its effect was to suspend, rather than to exclude, the right of access to the court and the power of the court to perform its judicial review function. There was no basis to give the section a narrow construction. Thus section 13 fell to be given its ordinary and natural meaning which turned on the language used, considered in its statutory context and in the light of the legislative purpose: R v Cornwall County Council, ex parte Huntington [1994] 1 WLR 694 followed. Pinner v Everett [1969] 1 WLR 1266 considered.
(2) The meaning of the words of section 13, when understood in their context, was that proceedings could only be brought in the six week period once the NPS was designated or published. Judicial review challenges both before and after that six week period were prohibited. Since in this case any designation or publication of an NPS was not expected to occur until late 2017 at the earliest, any claim before that was precluded. The purpose of the 2008 Act, both in its provisions as a whole and its policy background, was to speed up the planning processes for major developments. The scheme of the 2008 Act was that where it was proposed that an NPS was location specific, a necessary step in the process of preparing a draft NPS for consultation was deciding on the location to include in the draft. Once a draft NPS and accompanying appraisal of sustainability were published and laid before Parliament, there was public consultation and an opportunity for MPs to debate it. Following the consultation process, the defendant had to have regard to the responses in deciding whether to proceed with the proposal. If an NPS was finally designated and published, the period for legal challenge by way of judicial review would be for six weeks.
(3) Section 13 clearly enabled challenges to anything done or omitted to be done in the course of preparing an NPS, albeit that there might need to be a fact-sensitive inquiry as to whether a particular act or omission was in the course of preparing an NPS. There was no basis to confine such acts or omissions to the exercise by the secretary of state of his statutory functions under the 2008 Act, or to separate out what were characterised as preceding policy-making functions not subject to the preclusive effect of section 13. If Parliament had intended that those acts or omissions be limited to what was laid down in the 2008 Act, or to a draft NPS, it could easily have said so. Nor was there any warrant for distinguishing between policy statements which had the imprimatur of the NPS and other policy statements. The formulation of a policy might be part of the preparation of an NPS and to draw such a distinction was artificial. The statutory net was cast wide and applied to “anything” done in preparing an NPS as well as to omissions.
(4) There was nothing in article 9 of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998 which prevented a signatory state from having in place provisions regulating the time at which a claimant might bring a challenge in the domestic courts.
(5) Accordingly, under section 13 of the 2008 Act, the court had no jurisdiction to hear the claim. That followed from the language of the section, the legislative purpose and the overall statutory context and history. Once the defendant had adopted and published an NPS, the court would have jurisdiction to entertain the challenges the claimants advanced.
Martin Chamberlain QC and Richard Wald (instructed by Harrison Grant) appeared for the claimants; James Maurici QC, David Blundell, Andrew Byass and Heather Sargent (instructed by the Government Legal Department) appeared for the defendant; Stephen Tromans QC and Catherine Dobson (instructed by Transport for London) appeared for the fourth and fifth interested parties; Gerry Facenna QC in attendance at the hearing for the second interested party.
Eileen O’Grady, barrister
