Heathrow Hub Ltd v The Secretary of State for Transport

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Hickinbottom,Mr Justice Holgate,Mr Justice Marcus Smith
Judgment Date01 May 2019
Neutral Citation[2019] EWHC 1069 (Admin)
Docket NumberCase No CO/3071/2018
Date01 May 2019

[2019] EWHC 1069 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Hickinbottom

Mr Justice Holgate

and

Mr Justice Marcus Smith

Case No CO/3071/2018

The Queen on the Application of

Between:
(1) Heathrow Hub Limited
(2) Runway Innovations Limited
Claimants
and
The Secretary of State for Transport
Defendant

and

(1) Heathrow Airport Limited
(2) Arora Holdings Limited
Interested Parties

and

The Speaker of the House of Commons
Intervener

Martin Kingston QC, Robert O'Donoghue QC, Satnam Choongh and Emma Mockford (instructed by DAC Beachcroft LLP) for the Claimants

Robert Palmer QC, Alan Bates, Richard Moules and Andrew Byass (instructed by Government Legal Department) for the Secretary of State for Transport

Michael Humphries QC, Gerry Facenna QC and Richard Turney (instructed by Bryan Cave Leighton Paisner LLP) for Heathrow Airport Limited

Charles Banner QC (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for Arora Holdings Limited

Sarah Hannett (instructed by Office of the Speaker's Counsel in the House of Commons) for the Intervener

Hearing dates: 20–22 March 2019

Further written submissions: 26–28 March 2019

Approved Judgment

Mr Justice Marcus Smith

Lord Justice Hickinbottom, Mr Justice Holgate and

Introduction

1

This is one of several judicial reviews of the decision of the Secretary of State for Transport (“the Secretary of State”), made under section 5 of the Planning Act 2008 (“the PA 2008”), to designate “Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England” (“the ANPS”). In the other judicial reviews, heard immediately before this claim, several claimants have challenged the ANPS because it concluded that airport capacity in the South East of England should be increased and that increase should be provided by constructing a third runway at Heathrow Airport (“Heathrow”) to the north west of the current runways (“the NWR Scheme”). They generally oppose such expansion. The claims are the subject of a separate judgment ( [2019] EWHC 1070 (Admin)) (“the First Judgment”).

2

In this judicial review, the Claimants, Heathrow Hub Limited (“HHL”) and Runway Innovations Limited (“RIL”), support the expansion of Heathrow, but challenge the decision to expand the airport by way of the NWR Scheme. Although a number of other schemes for additional airport capacity have been considered, for present purposes only one alternative scheme is material. This alternative scheme – promoted by the Claimants, who own the intellectual property rights to it – involves an expansion of capacity at Heathrow by way of an extension of the current northern runway so that it can effectively operate as two separate runways. This scheme was known as the Extended Northern Runway Scheme (“the ENR Scheme”).

The Parties

3

The Claimants are companies which have been engaged over several years in developing and promoting the ENR Scheme. As we have noted, they own the intellectual property rights in the scheme; and, although we express no opinion one way or the other about those rights, all of the parties proceeded on the basis that, if the ENR Scheme had been adopted in the ANPS as best satisfying the need for additional capacity, then, in order for the construction and operation of the scheme to go ahead, the Claimants' rights in respect of the scheme would have to be purchased or licensed by someone willing and able to implement it. The Claimants have never themselves had the intention of undertaking the development.

4

Before us, the Claimants were represented by Martin Kingston QC, Robert O'Donoghue QC, Satnam Choongh and Emma Mockford.

5

The Defendant is the Secretary of State who designated the ANPS. He was represented by Robert Palmer QC, Alan Bates, Richard Moules and Andrew Byass.

6

The Interested Parties are Heathrow Airport Limited (“HAL”) and Arora Holdings Limited (“Arora”). HAL is the owner and current operator of Heathrow. HAL promoted the NWR Scheme. It was represented by Michael Humphries QC, Gerry Facenna QC and Richard Turney. Arora is part of the Arora Group, which owns a significant portion of the land within the geographic boundary of the NWR Scheme and supports the expansion of Heathrow by way of the NWR Scheme; but it proposes a different solution to the manner in which the scheme is to be implemented. Whereas HAL proposes new terminal facilities related to the existing facilities which it operates, Arora proposes a distinct terminal which it will develop and operate. It was represented by Charles Banner QC.

7

The Speaker of the House of Commons intervened to object to various statements made to Parliament and Parliamentary Committees being admitted in evidence. He was represented by Sarah Hannett of Counsel, and Saira Salimi and Andrew Burrow of the Office of the Speaker's Counsel.

The Grounds

8

In contradistinction from the other judicial reviews of the ANPS, the Claimants do not challenge the ANPS insofar as it established that there is a need for new airport capacity in the South East of England and that that need is best met by expanding Heathrow. It is the conclusion that the need should be met by the NWR Scheme, rather than their own ENR Scheme, that is challenged. To this end, the Claimants contend that the reasons for preferring the NWR Scheme over the ENR Scheme given in the ANPS are “manifestly bogus”; and that the real reason for rejecting the ENR Scheme was that HAL “never formally guaranteed, in writing, to implement the ENR Scheme if selected by the Government as its preferred scheme for expansion of airport capacity” (paragraphs 5–7 of their Amended Statement of Facts and Grounds for Judicial Review (“the JR Grounds”)). As a result, it is said that the Secretary of State “has strengthened, to an unimaginable and lasting degree, [HAL's] monopoly position in relation to the provision of airport services at Heathrow” (paragraph 8).

9

Consequently, the Claimants submit that the Secretary of State's decision to designate the ANPS was legally flawed and should be withdrawn and/or quashed on the five grounds set out in paragraph 10 of the JR Grounds. In summary, the grounds are as follows. In accepting the NWR Scheme and rejecting the ENR Scheme:

Ground 1

The Secretary of State breached European Union (“EU”) law by insisting that HAL provides a guarantee or assurance that it would implement the Claimants' scheme if that scheme were selected by the Government as its preferred scheme for airport expansion; and making the provision of that guarantee or assurance an effective pre-condition to the selection of the ENR Scheme. This pre-condition was unlawful as a matter of EU law insofar as it breached articles 106(1) and 102 of the Treaty on the Functioning of the European Union (“TFEU”).

Ground 2

The Secretary of State acted unlawfully in insisting on the provision of that guarantee or assurance, because to do so was (i) procedurally unfair and (ii) in breach of the Claimants' legitimate expectation that the Secretary of State would select the ENR Scheme if he found it to be “the most suitable scheme”.

Ground 3

The Secretary of State had regard to an immaterial consideration, namely his factually incorrect assumption that the NWR Scheme provided greater capacity for air traffic movements and more “respite” (i.e. the provision of respite from noise to the surrounding population); and/or failed to have regard to a material consideration, namely the evidence which demonstrated that the ENR Scheme provided for at least the same capacity in terms of air traffic movements as the NWR Scheme and that the NWR Scheme could not in practice deliver the levels of respite attributed to it.

Ground 4

In the alternative to Ground 3, the Secretary of State failed to provide any or any adequate/intelligible reasons for rejecting the Claimants' submissions that the ENR Scheme provided for the same capacity and respite as the NWR Scheme.

Ground 5

The Secretary of State acted unlawfully by taking into account concerns relating to the safety of the ENR Scheme, and the implications of this for deliverability, and failing to provide any or any intelligible details or explanation of what the safety concerns were or what those concerns were based upon. He also acted contrary to the Claimants' legitimate expectation that he would, before relying on a particular matter for rejecting their scheme, bring that matter to their attention and give them a reasonable opportunity to respond.

10

Following receipt of the Secretary of State's Detailed Grounds of Defence, Ground 3 was abandoned. In respect of the other grounds, by direction of Holgate J, the application for permission to proceed was listed before us as a rolled-up hearing, i.e. on the basis that we would deal with the application for permission and, if it should be granted, the substantive application in a single hearing. As a result, we heard full argument on all issues.

Structure of the Judgment

11

In this judgment, after some preliminary points, we describe the factual background of the decision-making process which culminated in the ANPS. The First Judgment sets out the background in some detail (see, especially, paragraphs 42 and following). We focus on the aspects of the process relating to the Secretary of State's designation of the NWR Scheme in preference to the ENR Scheme. Much of the overall decision-making process – which did not relate to this question – is immaterial for the purposes of the determination of this claim, and we have omitted it. We cover any additional evidence that specifically relates to a particular ground of challenge when we deal with that ground.

12

We then deal with the four remaining grounds. We consider first Grounds 4 and 5 (retaining the original numbering,...

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