Lessons From The Heathrow Cases

In my 15 October 2016 blog post Airports & Courts I made the obvious prediction that publication by the Secretary of State for Transport of the Airports National Policy Statement (“ANPS”) would inevitably lead to litigation. The ANPS is important because under the Planning Act 2008 it sets the policy basis for a third runway at Heathrow to the north west of the current runways (the “NWR Scheme”).

It was always going to be important for the High Court to be able to rise to the (in a non-legal sense) administrative challenge of disposing of claims efficiently and fairly. The purpose of this blog post is to look at how that was achieved (no easy feat) and what we can learn more generally from the court’s approach to the litigation

The ANPS was designated on 26 June 2018 and five claims were brought seeking to challenge that decision:

⁃ A litigant in person, Neil Spurrier (a solicitor who is a member of the Teddington Action Group)

⁃ A group comprising the London Borough of Richmond-upon-Thames, the Royal Borough of Windsor and Maidenhead, the London Borough of Hammersmith and Fulham, Greenpeace and the Mayor of London

⁃ Friends of the Earth

⁃ Plan B Earth

⁃ Heathrow Hub Limited and Runway Innovations Limited [unlike the other claimants above, these claimants argue for 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”)]

Arora Holdings Limited joined as an interested party to each set of proceedings in pursuance of their case for a consolidated terminal facility to the west of the airport.

The Speaker for the House of Commons intervened in the Heathrow Hub Limited claim to object to various statements made to Parliament and Parliamentary Committees being admitted in evidence.

The first four claims raised 22 separate grounds of challenge. The fifth claim raised a further five grounds of challenge.

As Planning Liaison Judge, ie effectively lead judge within the Planning Court, Holgate J in my view has played an extremely effective role. Following a directions hearing, ahead of a subsequent pre-trial review three months later, he laid down a comprehensive set of directions on 4 October 2018 which provided for:

⁃ the first four claims to be heard at a single rolled up hearing, followed by the fifth claim

⁃ the cases to be heard by a Divisional Court (ie two or more judges, normally a High Court Judge and a Lord Justice of Appeal. In the event, the four claims were heard by a Divisional Court comprising Hickinbottom LJ and Holgate J. The fifth claim was heard immediately afterwards by a Divisional Court comprising Hickinbottom LJ, and Holgate and Marcus Smith JJ.)

⁃ video link to a second court room and (paid for jointly by the parties in agreed proportions) live searchable transcripts of each day’s proceedings

⁃ procedure to be followed in relation to expert evidence sought to be submitted in support of the first claim

⁃ statements of common ground

⁃ amended grounds of claim, with strict page limits and against the background of a request from the judge to “review the extent to which they consider that any legal grounds of challenge previously relied upon remain properly arguable in the light of the Acknowledgments of Service“, and with specific claimants leading on individual issues

⁃ bundles and skeleton arguments complying with strict page limits and other requirements

⁃ payment of security for costs by Heathrow Hub Limited in the sum of £250,000

⁃ cost capping in the other claims on Aarhus Convention principles

The main proceedings were heard over seven days in March, with the Heathrow Hub proceedings then taking a further three days (followed by written submissions). As directed by Holgate J, hearing transcripts were made publicly available.

Less than six weeks after close of the Heathrow Hub hearing, judgment was handed on 1 May 2019 in both case:

R (Spurrier & others) v Secretary of State (Divisional Court, 1 May 2019)

R (Heathrow Hub Limited & Runway Innovations Limited) v Secretary of State (Divisional Court, 1 May 2019)

The transcript of the first judgment runs to 184 pages and the transcript of the second judgment runs to 72 pages.

I am not going to summarise the judgments in this blog post but happily there is no need as the court at the same time issued a summary, which serves as a helpful précis of the claims and the court’s reasoning for rejecting each of them.

The Divisional Court found that all but six grounds were unarguable (the six being two Habitats Directive grounds from the first case, two SEA grounds from the first case and two from the second case (legitimate expectation and anti-competition). “All the other grounds were not considered not to have been arguable: the claimants may apply for permission to appeal against the Divisional Court’s decision concerning those grounds to the Court of Appeal within 7 days. The remaining six grounds were ultimately dismissed. The claimants may apply to the Divisional Court for permission to appeal within 7 days. If the Divisional Court refuses permission to appeal to the Court of Appeal, the claimants may re-apply directly to the Court of Appeal.”

The Secretary of State for Transport gave a written statement in the House of Commons on the same day, welcoming the judgments.

The two judgments will be essential reading in due course for all involved in similar challenges; the 29 grounds, and various additional preliminary points, cover a wide range of issues frequently raised in these sorts of cases and each is carefully dealt with, with some useful textbook style analysis.

In the Spurrier judgment:

– the scope for challenge of an NPS (paras 86 to 90)

⁃ relationship between the NPS and DCO process (paras 91 to 112)

⁃ extent of duty to give reasons for the policy set out in the NPS (paras 113 to 123)

⁃ consultation requirements in relation to preparation of an NPS (paras 124 to 140)

⁃ standard of review in relation to each of the grounds of challenge (paras 141 to 184)

⁃ the limited circumstances in which expert evidence is admissible in judicial review (paras 174 to 179)

⁃ whether updated information should have been taken into account (paras 201 to 209)

⁃ whether mode share targets were taken into account that were not realistically capable of being delivered (paras 210 to 219)

⁃ the relevance of the Air Quality Directive for the Secretary of State’s decision making (paras 220 to 285)

⁃ compliance with the Habitats Directive (paras 286 to 373)

⁃ compliance with the Strategic Environmental Assessment Directive (paras 374 to 502)

⁃ whether consultation was carried out with an open mind (paras 503 to 552)

⁃ whether the decision to designate the ANPS was tainted by bias (paras 553 to 557)

⁃ the relevance of the Government’s commitments to combat climate change (paras 558 to 660)

⁃ whether there was a breach of the European Convention on Human Rights (paras 661 to 665)

In the Heathrow Hub judgment:

⁃ legitimate expectation (paras 113 to 138)

⁃ use of Parliamentary material in the context of Article 9 of the Bill of Rights (paras 139 to 152)

⁃ competition law (paras 157 to 209).

As we wait to see whether any of these claims go further, I note that Arora has commenced pre application consultation ahead of submitting a draft DCO for a “consolidated terminal facility to the west of the airport, which we are calling Heathrow West, related infrastructure and changes to the nearby road and river network.” Now that is going to be another interesting story in due course. I’m not sure we have previously seen duelling DCOs…

Simon Ricketts, 4 May 2019

Personal views, et cetera