R Neil Richard Spurrier v The Secretary of State for Transport

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Hickinbottom,Mr Justice Holgate
Judgment Date01 May 2019
Neutral Citation[2019] EWHC 1070 (Admin)
Date01 May 2019
Docket NumberCase Nos CO/2760/2018, CO/3089/2018, CO/3147/2018 and CO/3149/2018

[2019] EWHC 1070 (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

and

Mr Justice Holgate

Case Nos CO/2760/2018, CO/3089/2018, CO/3147/2018 and CO/3149/2018

Between:
The Queen on the Application of Neil Richard Spurrier
Claimant
and
The Secretary of State for Transport
Defendant

and

(1) Heathrow Airport Limited
(2) Heathrow Hub Limited
(3) Gatwick Airport Limited
(4) Arora Holdings Limited
Interested Parties

The Queen on the Application of

(1) The London Borough of Hillingdon
(2) The London Borough of Wandsworth
(3) The London Borough of Richmond Upon Thames
(4) The Royal Borough of Windsor and Maidenhead
(5) The London Borough of Hammersmith and Fulham
(6) Greenpeace Limited
(7) Mayor of London
Claimants
and
The Secretary of State for Transport
Defendant

and

(1) Heathrow Airport Limited
(2) The Secretary of State for Environment, Food and Rural Affairs
(3) Transport for London
(4) Arora Holdings Limited
Interested Parties
The Queen on the Application of Friends of the Earth Limited
Claimant
and
The Secretary of State for Transport
Defendant

and

(1) Heathrow Airport Limited
(2) Arora Holdings Limited
Interested Parties
The Queen on the Application of Plan B Earth Limited
Claimant
and
The Secretary of State for Transport
Defendant

and

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

Neil Richard Spurrier appeared in person

Nigel Pleming QC, Catherine Dobson and Stephanie David (instructed by Harrison Grant) for the London Borough of Hillingdon, the London Borough of Wandsworth, the London Borough of Richmond upon Thames, the Royal Borough of Windsor and Maidenhead, the London Borough of Hammersmith and Fulham and Greenpeace Limited

Ben Jaffey QC, Catherine Dobson, Flora Robertson and Stephanie David (instructed by Transport for London Legal) for the Mayor of London

David Wolfe QC, Andrew Parkinson and Peter Lockley (instructed by Leigh Day) for Friends of the Earth Limited

Tim Crosland (Director) for Plan B Earth

James Maurici QC, David Blundell, Andrew Byass and Heather Sargent (instructed by Government Legal Department) for the Secretary of State for Transport

Martin Kingston QC, Robert O'Donoghue QC, Satnam Choogh and Emma Mockford (instructed by DAC Beachcroft) for Heathrow Hub Limited

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

No other party appearing or being represented

Hearing dates: 11–15 and 18–19 March 2019

Approved Judgment

Mr Justice Holgate

Lord Justice Hickinbottom and

Introduction

1

Heathrow is the busiest two-runway airport in the world, being currently full to capacity with further, unfulfilled demand. It is important to the national as well as the local economy. However, it is situated in a heavily built-up area of West London, with most aircraft using it passing over Central London in taking off or landing. As a result, whether its capacity should be expanded by constructing a third runway has been a long-standing question of national importance and acute political controversy. In these claims, the latest statement of Government policy supporting such expansion is challenged.

2

On 26 June 2018, the Secretary of State for Transport (“the Secretary of State”) designated “Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England” (“the ANPS”) under section 5 of the Planning Act 2008 (“the PA 2008”). The ANPS set outs 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”).

3

In these four claims, the Claimants seek to challenge that designation decision. The claims are linked and, following case management by Holgate J, were heard together. There is a fifth claim, raising somewhat different issues, heard by a different but overlapping constitution immediately following, which is the subject of a separate judgment ( [2019] EWHC 1069 (Admin)) (“the Second Judgment”).

4

By direction of Holgate J, the application for permission to proceed was listed before us on a rolled-up basis, i.e. that we would deal with the application for permission and, if it were granted, the substantive application in a single hearing. As a result, we heard full argument on all issues.

5

This judgment has the following parts (with their paragraph numbers):

The Parties

Introduction

1–5

Parties

6–13

Evidence

14–15

Structure of the Judgment

16–19

Planning Act 2008

20–41

Factual Background

42–85

Preliminary Point 1: “National policy” and “Government policy”

86–90

Preliminary Point 2: Sections 87(3)(b) and 106(1)(b): The Relationship between the ANPS and the DCO Process

91–112

Preliminary Point 3: Section 5(7): “Reasons for the policy”

113–123

Preliminary Point 4: Section 7: Consultation Requirements

124–137

Preliminary Point 5: Section 13: The Effect of the Ouster/Suspension Clause

138–140

Preliminary Point 6: Standard of Review

141–184

Surface Access

185–219

Air Quality

220–285

Habitats

286–373

Strategic Environmental Assessment

374–502

Consultation

513–552

Bias

553–557

Climate Change

558–660

Human Rights

661–665

Disposal

666–668

Postscript

669

Appendix A: Grounds

Appendix B: Issues

Appendix C: Terms and Abbreviations

6

There are four claims before us.

7

In Claim No CO/3089/2018, there are seven Claimants including the London Borough of Hillingdon (“Hillingdon”), in which Heathrow is situated, and four adjacent London Boroughs. The sixth Claimant is the Mayor of London (“the Mayor”), an elected office established by section 2 of the Greater London Authority Act 1999 (“the GLA Act”) who, with the London Assembly, forms the Greater London Authority (“the GLA”). Under the GLA Act, the Mayor is required to have in place a London Environment Strategy including provisions dealing with air quality (sections 362–369), climate change (sections 361A–361B and 316D) and noise (section 370). He is under a specific duty to address climate change so far as Greater London is concerned (section 361A(2)). Transport for London (“TfL”), which is responsible for implementing the Mayor's strategy for transport in London (section 154 of the GLA Act), is an Interested Party. The other Claimant is Greenpeace, a non-governmental organisation concerned with the environment. We shall refer to the Claimants in this claim collectively as “the Hillingdon Claimants”; and to the five London Borough Claimants as “the Hillingdon Claimant Boroughs”. Before us, Nigel Pleming QC appeared for the Hillingdon Claimants excluding the Mayor; and Ben Jaffey QC and Flora Robertson appeared for the Mayor. In addition, Catherine Dobson and Stephanie David also appeared for all the Hillingdon Claimants.

8

In Claim No CO/3147/2018, Friends of the Earth Limited (“FoE”) is the Claimant. It is a non-governmental organisation particularly concerned with climate change. Before us, it was represented by David Wolfe QC, Andrew Parkinson and Peter Lockley.

9

In Claim No CO/3149/2018, the Claimant is Plan B Earth, a charity concerned with climate change. Before us, it was represented by its Director, Tim Crosland.

10

Finally, in Claim No CO/2760/2018, the Claimant is Neil Spurrier, who appeared in person.

11

In each claim, Heathrow Airport Limited (“HAL”) and Arora Holdings Limited (“Arora”) are Interested Parties. HAL is the airport operator at Heathrow, and has promoted the NWR Scheme. Before us, HAL was represented by Michael Humphries QC and Richard Turney. Arora represents companies within the Arora Group which own a significant proportion of the land within the boundary of the proposed NWR Scheme, and which propose to build and operate the new terminal that would be constructed as part of that scheme. Before us, Arora was represented by Charles Banner QC (except for the first day, when Yaaser Vanderman appeared).

12

In each claim, James Maurici QC, David Blundell, Andrew Byass and Heather Sargent appeared for the Defendant Secretary of State.

13

None of the other parties made representations at the hearing.

The Evidence

14

The amount of evidence presented to us was enormous. In this judgment, we will have to refer to only a small part of it; but we consider that it would be helpful if, at this stage, we identify the main witnesses to whose evidence we will refer.

i) Alex Williams is the Director of City Planning at TfL, having been in senior management posts at TfL since 2007. He prepared two statements dated 6 August 2018 (amended 1 November 2018) (“Williams 1”) and 21 December 2018 (“Williams 2”).

ii) Lucy Owen was the Interim Executive Director for Development, Enterprise and Environment at the GLA. She prepared a statement dated 10 August 2018 (amended 1 November 2018) (“Owen”).

iii) Councillor Raymond Puddifoot MBE is the Leader of Hillingdon London Borough Council. He has prepared two witness statements dated 6 August 2018 (amended 1 November 2018) (“Puddifoot 1”) and 19 December 2018 (“Puddifoot 2”).

iv) Ian Thynne is the Planning Specialists Team Leader at Hillingdon London Borough Council. He has prepared two witness statements dated 6 August 2018 (amended 1 November 2018) (“Thynne 1”) and 20 December 2018 (“Thynne 2”).

v) Paul Baker is the Lead Environmental Policy Officer at Hammersmith and Fulham London Borough Council. He has prepared two witness statements dated 6 August 2018 (“Baker 1”) and 20 December 2018 (“Baker 2”).

vi) Colin Stanbury is the Aviation Project Officer for Richmond upon Thames and Wandsworth London...

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