Peter Sanders and Another v Airports Commission and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 02 December 2013 |
| Neutral Citation | [2013] EWHC 3754 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 December 2013 |
| Docket Number | Case No: CO/15340/2013 |
[2013] EWHC 3754 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Patterson
Case No: CO/15340/2013
Paul Stinchcombe QC and Ned Helme (instructed by Leigh Day) for the Claimants
Dan Kolinsky and Zoë Leventhal (instructed by The Treasury Solicitor) for the First Defendant
Samantha Broadfoot (instructed by The Treasury Solicitor) for the Second Defendant
Hearing dates: 22nd November 2013
Approved Judgment
Introduction
Peter Sanders and Brian Ross are members of the Executive Committee of Stop Stansted Expansion ("SSE"). They seek to challenge decisions on the part of the Airport Commission ("AC") and the Secretary of State for Transport ("Secretary of State") which relate to a time when Mr Geoff Muirhead CBE (Mr Muirhead) was a Commissioner with the AC.
The claimants seek a declaration that the sift criteria adopted by the AC for use in assessing proposals for long term capacity at UK airports are infected by apparent bias, an order quashing the sift criteria and an order prohibiting the AC from publishing its "short list" of proposals until such time as (i) the sift criteria have been re-determined, (ii) further appointments have been made to the expert panel in the light of the re-determined sift criteria; and (iii) the re-determined criteria have been used to produce the short list.
On the 23 rd October 2013 Mr Justice Ouseley ordered that the application was to be listed in court as a "rolled up hearing", on notice to the defendants, for one day on the 22 nd November 2013. As part of the listing directions the parties were ordered to agree a timetable enabling oral submissions to be concluded within the day of the hearing. It was noted also that the case had been put in at short notice because of the urgency.
The urgency is because the Airports Commission has been set up by the Secretary of State under terms of reference which require it to publish an interim report by the end of 2013. As the report has been directly commissioned by government the latest day for publication is the 18 th December 2013 as the House of Commons rises the following day and it is inappropriate to publish a directly commissioned report in parliamentary recess.
The Airports Commission has been given the task by the Secretary of State 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. It is to identify and evaluate how any need for additional capacity should be met in the short, medium and long term." It is to report "no later than the end of 2013 on:
• Its assessment of the evidence on the nature, scale and timing of the steps needed to maintain the UK's global hub status; and
• Its recommendations for immediate actions to improve the use of existing runway capacity in the next five years — consistent with credible long term options.
The assessment and recommendations in the Commission's Interim Report should be underpinned by a detailed review of the evidence in relation to the current forecast in the UK with regard to aviation demand and connectivity, forecasts for how these are likely to develop, and the expected future pattern of the UK's requirements for international and domestic connectivity."
A final report is to be published no later than the summer of 2015 on,
i) An assessment of the options for meeting the UK's international connectivity needs, including their economic, social and environmental impact;
ii) Its recommendations for the optimum approach to meeting any needs;
iii) Its recommendations for ensuring the need is met as expeditiously as practicable within the required timescale;
iv) As part of the final report the AC is to provide materials based on a detailed analysis which will be contained within the report which will support the government in preparing a National Policy Statement to accelerate the resolution of any future planning applications for major airports infrastructure.
The Commission was established on the 7 th September 2012 under the chairmanship of Sir Howard Davies, former deputy governor of the Bank of England and director of the London School of Economics. The other members of the Commission were announced on the 2 nd November 2012. They were Sir John Armitt CBE, Professor Ricky Burdett, Vivienne Cox, Professor Dame Julia King and Geoff Muirhead CBE.
In outline the claimants assert that the role of Mr Muirhead as a Commissioner tainted the activities and decisions of the AC by reason of apparent bias because of his links with Manchester Airports Group (MAG).
In fact, Mr Muirhead stepped down from his role as a Commissioner on the 20 th September 2013. He has not been involved with the Commission since that date. It is said by the defendants that the reason for Mr Muirhead stepping down was as a precautionary measure as there was a risk that his continued involvement on the Commission might give rise to an appearance of bias. That is because his former employers, MAG, submitted a proposal concerning the long term expansion of Stansted Airport which MAG had acquired on the 28 th February 2013.
The defendants' case is that with Mr Muirhead stepping down the claimants achieved their main objective. The attempt to impugn the Commission's sift criteria which were adopted on the 3 rd May 2013 is misconceived and is out of time.
The claimants maintain that their claim is perfectly valid because of the retrospective operative effect of the apparent bias of Mr Muirhead. They did not know that he had participated in the determination of the sift criteria until the AC responded to its pre-action protocol letter on the 20 th September 2013. The claimants had asked the AC to look afresh at the sift criteria if it transpired that Mr Muirhead had been involved in their determination and likewise had asked the Secretary of State, as the sponsoring department, to require the Commission to do so. Both have refused. If the court considers the more appropriate target for the judicial review is against the original decision to adopt the sift criteria then the claimants ask for an extension of time within which to do so. For reasons set out they lacked the necessary knowledge to bring such a challenge until receipt of the responses to the letters before claim.
Factual background
SSE was established in 2002 in response to the government's consultation on expanding UK airports and, in particular, to address the threat posed by expansion plans for Stansted Airport. Its objective is to contain the development of Stansted Airport within tight limits that are truly sustainable and, in that way, to protect the quality of life for residents over wide areas of Cambridgeshire, Essex, Hertfordshire and Suffolk, to preserve the heritage of the area and to protect the natural environment.
The claimants are long standing and key members of SSE's executive committee: Mr Sanders is chairman, a post he has held since July 2004 and Mr Ross is SSE's economic advisor, a position he has held since 2003.
As set out the Commission is an advisory body set up by the Secretary of State for Transport to advise the government on the need for additional UK airport capacity and to provide recommendations based on an objective appraisal of the evidence. Its role is limited to that of an advisor based on the findings of its reports.
The Department for Transport is the sponsoring department for the Commission and responsible for its creation and findings. It was the Secretary of State who appointed Sir Howard Davies as chair along with the other five Commissioners. The Secretary of State has not committed to be bound by the conclusions of the Commission but has said that he will take its conclusions into account.
From 1994 until the 1 st October 2010 Mr Muirhead was chief executive of MAG. He is a qualified civil and structural engineer with in depth experience of airports operations and management. He had worked at MAG from 1988.
From his retirement from MAG until January 2013 Mr Muirhead was in receipt of consultancy fees from MAG. First, he had an arrangement whereby for a period of two years until the 1 st October 2012 for the provision of consultancy services he was paid an annual sum of £75,000. In fact, he was not asked to provide any such services. Second, he had an arrangement for a period of three years (until October 2013) during which he agreed to be nominated by MAG to be a member of, or to provide advice to, a number of regional and industry bodies. His responsibilities included membership of the North-West Business Leadership team which mainly involved promoting economic investment in North-West of England, acting as a special advisor to the Airports Council International (ACI) world board and European board, which involved providing advice on international and European aviation legislation and as Chair of the North West Campaign for Rail which lobbied for rail investment across the north west England. The North West Business Leadership team nominated him to be a non-executive director on the board of the Atlantic Gateway project which is a body promoting various investment schemes linking the ports of Liverpool and Manchester. He continues with that work on a pro bono basis as chair of that project. For the second arrangement Mr Muirhead was paid an annual sum of £75,000. That arrangement...
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