R (Medway Council and Others) v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Mr Justice Maurice Kay,MR JUSTICE MAURICE KAY |
| Judgment Date | 26 November 2002 |
| Neutral Citation | [2002] EWHC 2516 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: C/O 4548/2002 C/O 4896/2002 |
| Date | 26 November 2002 |
[2002] EWHC 2516 (Admin)
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Maurice Kay
Case No: C/O 4548/2002
C/O 4815/2002
C/O 4896/2002
John Steel Q.C., Robert White and Stephen Whale (instructed by Sharpe Pritchard) for Claimants (1)
Brian Ash Q.C. and Thomas Hill (instructed by Legal Services, Essex County Council) for Claimant (2)
John Hobson. Q.C. and Lisa Busch (instructed by Charles Russell Solicitors) for Claimants (3)
Timothy Corner Q.C. and Robert Palmer (instructed by the Treasury Solicitor) for the Defendant
It is expected that the demand for air travel will rise substantially over the next thirty years. In July 2002 the Department for Transport published The Future Development of Air Transport in the United Kingdom: South East as a Consultation Document. It invited responses by 30 November 2002. It refers to the need for a long term framework that will maximise the beneficial aspects of aviation and minimise the negative effects. It will be followed in 2003 by a White Paper on air transport which will bring together a national airports policy and new policies on civil aviation. It is concerned with "how much extra airport capacity, if any, to plan over the next 30 years, and where should any new airport capacity be located". Projections of increase are difficult and depend upon a range of assumptions and variables but on a basis of "unconstrained passenger demand" the Consultation Document forecasts an increase in the South East from 117 million passenger movements in 2000 to 301 million in 2030. On any basis such a substantial increase would necessitate an increase in airport capacity either by the expansion of existing airports or by the establishment of a new airport or by some combination of the two. The Consultation Document describes options which would involve expansion at Heathrow and Stansted (and also Luton, but that has not figured in this case). It also includes the option of a possible new airport at Cliffe in North Kent. However, conspicuous by its absence is any option for new runway capacity at Gatwick. It is stated in terms:
"The Government will not include in the White Paper any options for new runways at Gatwick."
This case is concerned with three challenges to the exclusion of Gatwick. First, there is a challenge by Medway Council and Kent County Council. Their interest stems from the option of a possible new airport at Cliffe. Secondly, there is a challenge by Essex County Council, in whose area Stansted is situated. Thirdly, there is a challenge by Norman Mead and David Fossett who live in the vicinity of Stansted. Some of the grounds of challenge are common to the three applications. Others are specific to particular applications.
Before turning to the grounds of challenge it is appropriate to refer to the status of various stages in the process. The consultation initiated by the Consultation Document is a non-statutory consultation. The Consultation Document draws on the South East and East of England Regional Air Services Study (SERAS) which was commissioned by the Government in March 1999. The objectives of SERAS were to assess the demand for airport capacity in the South East and East of England, to consider options as to how this might be addressed; to appraise their economic, environmental and social implications; and to help the Government devise a 30 year sustainable development policy for airports in the United Kingdom. Its terms of reference embraced "a comprehensive appraisal of a wide range of options". They did not exclude Gatwick and, indeed, the options considered by SERAS included options for extra runway capacity at Gatwick. Until the publication of the Consultation Document, there had been no indication from the Department of Transport that further consideration of Gatwick options was to be excluded.
The White Paper will set out Government policy, including policy as to where any expansion of runway capacity should be provided. It will not permit any such development. That would require planning permission to be obtained by the actual or prospective airport operator in due course. The policy set out in the White Paper would of course be a highly material consideration in relation to any grant or refusal of planning permission. Although the policy will look to the long term, that does not mean that it will not undergo review during the 30 years. I now turn to the grounds of challenge
Ground 1: the Secretary of State's reasons for excluding Gatwick
This ground of challenge is relied upon by all the Claimants. The reasons set out in the Consultation Document are in the following terms:
"In 1979, the then British Airports Authority (now BAA PLC) signed an agreement with West Sussex County Council under which the airport operator undertook not to construct a second runway at Gatwick before 2019. The SERAS Study was conducted on the basis that nothing was ruled out and nothing was ruled in. It therefore included various options for one or two additional runways at Gatwick and the Government has considered these carefully. The Government has decided that it does not intend to take action to overturn the 1979 Agreement. On that basis, a new runway at Gatwick would not be open before about 2024. The Government has concluded that an option for a new runway that could not be available until very late in the 30 year period of the forthcoming White Paper would create unnecessary blight and anxiety
The Government will not, therefore, include in the White Paper any options for new runways at Gatwick."
Thus, two reasons were being given, (1) the 1979 Agreement (which was made pursuant to section 52 of the Town and Country Planning Act 1971) and a decision not to take action to overturn it, and (2) the creation of unnecessary blight and anxiety in the light of the timescale. The evidence filed on behalf of the Secretary of State seeks to add to and amplify these reasons. The witness statement of Michael Fawcett, Head of Airports Policy Division in the Department of Transport, states that it was considered highly undesirable as a matter of policy and principle to overturn the Agreement because (1) people should be able to continue to rely on it; (2) to overturn it would seriously undermine efforts to create greater certainty; and (3) there was evidence that West Sussex County Council and others were opposed to the overturning of it. At a later stage in the witness statement he refers to another reason to exclude Gatwick options:
"In the light of the possible need to provide for a hub [airport] in the South East of three runways, Ministers decided that the option for two new runways at Gatwick should be ruled out. This was because the opening of even the first of the new runways would be delayed until 2024 or thereabouts. [i.e. because of the 1979 Agreement]."
As a matter of law there are three ways in which the 1979 Agreement could be overturned: (1) by the parties themselves, namely West Sussex County Council and BAA, on a consensual basis; (2) by BAA applying to the Lands Tribunal pursuant to section 84 of the Law of Property Act 1925; or (3) by legislation pursuant to a hybrid Bill.
On behalf of the Secretary of State, Mr. Corner QC subjected the Claim Forms of the respective Claimants to a rigorous analysis which yielded the result that, one way or another, each of the Claimants appeared to put their case on two bases. First, there was a challenge to the decision of the Secretary of State not to introduce legislation to overturn the 1979 Agreement Secondly, there was a challenge to the decision to exclude Gatwick from the consultation process. He submitted that, whereas the second basis may be capable of giving rise to justiciable issues in judicial review proceedings, the first is not. This submission is founded upon the doctrine of the separation of powers. Thus, just as the court will not grant judicial review in relation to, or otherwise interfere with, a statute (unless it is in conflict with a directly enforceable provision of European Union law), so it should not grant judicial review in relation to, or otherwise interfere with, a decision not to legislate. In R v. Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513 the House of Lords was concerned with a case which involved the failure of the Secretary of State to bring into force statutory provisions which had been enacted some years earlier. Lord Browne-Wilkinson said (at p. 550):
"In my judgment it would be most undesirable that, in such circumstances, the court should intervene in the legislative process by requiring an Act of Parliament to be brought into effect. That would be for the courts to tread dangerously close to the area over which Parliament enjoys exclusive jurisdiction, namely the making of legislation."
I assume that the Claimant's counsel were as impressed as I was by this submission because, in the event, none of them pursued the case, either in relation to this ground of challenge or the later ones, on the basis of an attack on the decision not to introduce legislation to overturn the 1979 Agreement. Instead, they focused their attention on the decision to exclude Gatwick options from the consultation process.
The first, reasons, ground of challenge is put by reference to the following legal principles. The Secretary of State having decided to embark on a process of consultation,...
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