England and Wales Court of Appeal (Civil Division) Decisions

LTA 1998/6800/4 QBCOF 1293/4

IN THE SUPREME COURT OF JUDICATURE

(MR JUSTICE JOWITT )

Royal Courts of Justice

Strand

London WC2

Wednesday 23 June 1999

B e f o r e:

LORD JUSTICE HENRY

LORD JUSTICE WARD

LORD JUSTICE SCHIEMANN

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R E G I N A

-v-

AIRPORT CO-ORDINATION LIMITED

EX PARTE

1. ARAVCO LIMITED

2. DRAVIDIAN AIR SERVICES LIMITED

3. FALCON JET CENTRE LIMITED

4. GAMA AVIATION LIMITED

5. HEATHROW JET CHARTER LIMITED

6. METRO BUSINESS AVIATION LIMITED

7. SIEBE PLC

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR I CROXFORD QC and MR T DE LA MARE (Instructed by Messrs Davenport Lyons, London, W1) appeared on behalf of the Appellant

MR M CRANE QC and MR M FORDHAM (Instructed by Messrs Herbert Smith & Co, London, EC2) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court)

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©Crown Copyright

Wednesday 23 June 1999

JUDGMENT

LORD JUSTICE HENRY: This is an appeal from the judgment of Mr Justice Jowitt, who on 14 July 1998 dismissed the applicants’ application for the judicial review and quashing of certain new procedures related to the applicants’ use of Heathrow Airport, namely the adoption of Procedures for Controlling Ad Hoc Operations at Heathrow Airport, announced on 24 March 1998, and implemented on 6th May 1998.

Heathrow Airport is the busiest international airport in the world. Its traffic consists predominantly of scheduled and programmed non-scheduled (ie charter) services, which have preference in the allocation of take-off and landing permissions - known as slots. 58 million passengers a year fly in or out of Heathrow on those services.

The seven applicants are long term users of and based at Heathrow. Four of them are air taxi operators, catering mainly for business traffic. Two are the in-house airline of public companies, and the remaining applicant provides support services for those air operators. Between them they carry some 15,000 passengers a year in or out of the airport. The generic description for them is general aviation.

The scheduled and programmed non-scheduled carriers are generally allocated their slots (or series of slots) well in advance, at biannual scheduling conferences, one for each of the aviation year’s six-month seasons. The nature of the applicants’ businesses are such that they are not generally asking for a series of slots, but individual ad hoc take-off or landing slots, sought at comparatively short notice. Consequently, it is not surprising that the applicants fear that they will be squeezed out of Heathrow at some time.

What prompted the applications is this. The applicants’ source of slots was slots from the pool (which we will examine later) and, more relevantly, slots additional to the declared capacity of the airport, known as “opportunity slots”. Those opportunity slots became unpopular with the airport co-ordinator responsible for slot allocation, with the air traffic control service, and with the owner and operator of the airport. Accordingly, after a consultation period starting on 12th November 1996, on 6th May 1998 the respondents brought in a scheme which replaced opportunity slots with a new form of slot known as “tactical availability”. In these proceedings the applicants challenge the fairness of that consultation procedure, and the legality of the change.

It is necessary first to examine Council Regulation No 95/93: Common Rules for the allocation of Slots at congested Community Airports (which should be attached to these judgments as Appendix 1. Heathrow, the busiest international airport in the world, is such an airport.

Article 3 provides that when the Member State of the airport in question or the airport users consider that capacity at that airport is insufficient, the Member State shall ensure that a thorough capacity analysis is carried out, looking at the existing capacity, and the ways of improving it.

If possible increases in capacity cannot in the short term resolve the problem, the Member State shall, after consultation with users etc, designate the airport as “fully co-ordinated”. The effect of that designation is that during the periods when that designations is effective then for all take-offs and landings, the air carrier must have a “slot” (a scheduled time of arrival or departure allocated by a co-ordinator).

The co-ordinator and his duties are described in Article 4. He will be appointed by the Member State and have detailed knowledge of air carrier scheduling co-ordination. He will be responsible for the allocation of slots, he will participate in international scheduling conferences, and will carry out his tasks in a neutral, non-discriminatory and transparent way. He will monitor the use of those slots, and Articles 4(7) and 4(8) deal with the records he must keep and make available to interested parties. The Member State will be responsible for ensuring that he carries out his duties in an independent manner, but that will necessarily involve co-operation with the airport controller (Heathrow Airport Limited - “HAL”) and the air traffic controllers (the National Air Traffic Control Services - “NATS”).

The respondent in this case, Airport Co-ordination Limited (“ACL”) is the airport co-ordinator for the three fully co-ordinated airports in the United Kingdom (Heathrow, Gatwick and Manchester) and nine other airports. ACL is owned by eleven UK airlines, but operates independently of any airline or airport. It has a staff of 21 (most of whom have airport or airline operation experience) and sub-contracts a number of computer programmers. ACL is appointed as co-ordinator by the airport operator, with the approval of the Secretary of State. The co-ordinator is assisted in his task in a consultative capacity by a co-ordination committee (see Article 5). That committee is made up of the 95 (approximately) airlines who use Heathrow, the applicants, NATS and HAL. Amongst other things, the remit of the committee is to advise the possibilities for increasing the capacity of the airport determined under Article 6, and matters relating to the allocation of slots. But the general aviation operators (the applicants) point out that if on slot allocation their interests and those of the preferred scheduled operators conflict, they have only 40 votes against some 900.

The demand by scheduled aviation for additional slots at Heathrow greatly exceeds supply, despite the fact that over the last five years HAL has spent in excess of £512 million on improvements to the airport infrastructure to generate such capacity, as well as working with NATS and ACL to maximise the utilisation of the two runways. This has resulted in the declared capacity improving each year in recent years, and this has resulted in the air traffic control (ATC) system being less able to accommodate the introduction of unplanned ad hoc operations during the more congested periods of the day.

The allocation process itself starts with the biannual determination by the airport authority, HAL, of the capacity available for slot allocation (Article 6). This it does in co-operation with NATS, the airlines, and ACL, the airport co-ordinator. The results of that exercise is the “declared capacity” of the airport, and that figure must be provided to the co-ordinator in good time for the biannual scheduling conference when airlines bid for slots. Priority is given to historic precedence (Article 8(1)(a), and to scheduled and programmed services (Article 8(1)b).

When historic precedence is satisfied (Article 8(1)), then the residual slots go into the Pool which

"... shall contain newly created slots, unused slots and slots which have been given up by a carrier during, or by the end of, the season, or which otherwise become available." Article 10(1)

Scheduled services have first call on the Pool (Article 8(1)b).

After the scheduling conference, the unallocated slots go back into the pool which is replenished by slots “liberated at short notice” (Article 8(3)). Such slots, as well as any unallocated slots are ad hoc slots which the applicants hope to acquire. That uses up the declared capacity.

Because of the demand for slots at Heathrow, the authorities (ACL, NATS and HAL) have looked at ways of squeezing more capacity out of the airport - “supplementary capacity”.

Such capacity is not mentioned in, nor contemplated by, the Regulations. ACL have asserted that there is no obligation to create supplementary capacity in the Regulations. The judge agreed, and his decision is challenged in Ground 2 of this appeal. Prior to the introduction of the challenged procedures, supplementary capacity was generated by the use of “opportunity slots”. This depended on the identification of a relatively slack period in the flow of traffic, and the squeezing in of an extra aircraft. Then a request for such a slot is made to the Operations Duty Manager of HAL. He responded according to the application of two rules of thumb: first to count to see if there were less than ten aircraft in the queue, having left their stands, and second if the Flight Information System, known as Basis, showed that the number of departures in the next hour was at least two less than the declared capacity. Then an opportunity slot would be introduced.

The opportunity slot system was criticised. First, it was based on a snap-shot of the traffic flow, and did not look sufficiently far forward. Second, NATS (best placed to assess overall demand) were not consulted as to the inclusion of the aircraft. Third, often the expected gap was not there, and delay resulted. Fourth, the Basis system did not have sufficiently up-to-date information, and the counting of aircraft on the runway took no account of those cleared to taxi which had not yet left their stands. Fifth, it was hard matching the opportunity slot with a Eurocontrol slot from NATS. Sixth, as the system left no audit trail, so it was difficult to provide reliable data to assess its efficiency. But Air Traffic Control staff regularly witnessed delay cause by opportunity slots.

It will be seen that to operate such supplementary capacity required at least the tacit agreement of the airport co-ordinator, the airport operator, and the air traffic control services.

A counter-proposal, put forward by the applicants (“escape slots”), was rejected. This was very like the opportunity slot system, but with another method of identifying potential gaps in the traffic flow. A trial exercise had persuaded ACL, NATS and HAL that such a system would not work in practice.

Finally, after consultation, a new system was introduced, known as “tactical availability”. Such availability was declared on a Wednesday, 12-18 days ahead, based on NATS analysis of recent operational performance. After that Wednesday, it would then not be available until 6.30am on the day in question after the NATS watch manager had taken all up-to-the-minute operational circumstances into account. The object was to strike a balance between striving to use all available capacity, and avoiding ad hoc operations adding to delays and congestion in peak hours. It is this scheme which is challenged.

I turn to the live Grounds of Appeal. I take the numbers from the Notice of Appeal. Ground 1 contends that the decision to introduce the new system was vitiated because ACL was not neutral, but preferred NATS and HAL as consultees, alternatively, that ACL wrongly delegated the decision (in whole or in part) to them, alternatively involved them in a decision when they had fixed views against the opportunity slot system.

Historically, pre-1996, NATS had been voicing their concern that ACL and HAL were doing nothing to address the overload problem at peak hours. They believed that the opportunity slot system caused this overload, and that another method of slot allocation would be better. All this time NATS, with HAL support, was able to increase the Declared Capacity year on year, while NATS grew concerned that the opportunity slot system was handicapping these efforts. Of the three authorities controlling the airport (ACL, NATS and HAL) NATS were the best placed to know what slack there was in the system, and had the best database and research facilities.

By the time the first consultation paper was issued (November 1996), ACL, HAL and NATS were agreed that the problem was that “ad hoc operations were regularly occurring in hours of peak congestion ... and exacerbating delays”. The object of the procedures on which consultation was sought was to stop that, while continuing to utilise all available capacity, and to provide maximum flexibility for ad hoc operations by all types of traffic.

The need for changes was accepted by the user airlines as well as by the three controlling authorities. Only the applicants and their specialist user organisation (Heathrow Executive Jet Operators Association - “HEJOA”) doubted it.

As the judge rightly concluded, (and the applicants finally accepted) there was no evidence to show that ACL approached the question with a closed mind. Given their different responsibilities and expertise, it clearly made sense for the three controlling authorities to reach a provisional plan and to consult on that. The criticisms made in this ground of appeal do not have substance. What mattered was that ACL, with final responsibility, kept an open mind, and clearly they did. The changes to the original plan, and their taking more time than they had originally planned for (largely occupied with lengthy discussions with the applicants’ organisations) point surely to the genuineness of the process. The decision was theirs, and they took it. The genuineness of that decision is not compromised by the fact that the other two authorities agreed. Accordingly, I see nothing in the first ground of appeal.

Ground 2 of the appeal contends that the judge was wrong to conclude that “supplementary capacity” fell outside Regulation 95/93, and that he should have concluded that both opportunity slots and tactical availability (and, it would follow) escape slots are all forms of ad hoc slot covered by Article 8(3), and that the co-ordinator should therefore endeavour to accommodate “at all times” ad hoc requests “for any type of aviation including general aviation”.

Mr Morrisroe of ACL in paragraph 19 of his first affidavit defines supplementary capacity. He rightly points outs that the application of Article 6 involves the determination by the airport operator (HAL) of the declared capacity of the airport, and that supplementary capacity (opportunity slots, tactical availability and escape slots) is an attempt to “enhance” (or as I would prefer to put it, augment) the declared capacity by these ad hoc movements. That is how the opportunity slot scheme has been working , and working to provide slots over and above the declared capacity of the airport (which, as we have seen, has itself been increasing over the years).

Opportunity slots, tactical availability and escape slots are all take-off or landing opportunities and so are best described as “slots”. But they are not slots catered for by the Regulations. The declared capacity of the airport, available at the scheduling conferences, is “the capacity available for slot allocation” (Article 6(1)). The Regulations deal with the allocation of slots forming part of the declared capacity of the airport, and not with slots additional to that capacity. Nor is there a “purposive” case for ignoring the plain language of the regulations to bend them to apply to supplementary capacity, because, as we have seen, NATS, who were best placed to know, blamed the opportunity slot system for contributing to the overload problem at peak hours. If, for example, the co-ordinating committee raised under Article 5 the possibility for increasing the declared capacity of the airport, it would be no answer to say that the supplementary capacity prevented it. The stated purpose of “making the best use of existing slots” in the preamble to the Regulations clearly in context means slots included in the declared capacity, and given that clear intention, it would be perverse (because self-defeating) to construe Article 8(3) as requiring the co-ordinator to accommodate supplementary capacity at peak hours. Where Article 8(3) contemplates what the co-ordinator should use when he “endeavours to accommodate” ad hoc slot requests, the context makes clear that it expects him to look to “slots available in the pool ... but not yet allocated may be used, as may slots liberated at short notice” - ie he is there dealing only with slots within the declared capacity of the airport.

In my judgment the judge was right to conclude that slots derived from the supplementary capacity form no part of the allocation under Article 8(1), and never enter the Article 10 pool. If supplementary capacity had to be allocated under Article 8(3), the “at all times” provision would oblige the co-ordinator, even at peak hours, to endeavour to accommodate ad hoc requests for supplementary capacity over and above the declared capacity of the airport; that would be a recipe for disaster.

Therefore in my judgment this ground of appeal fails, and with it, for the same reasons, the third ground of appeal, namely that the judge should have construed the regulations allegedly purposively, so as to include supplementary capacity as well as declared capacity.

The single judge apparently gave leave to argue Ground 4. The respondents contend that the matter was neither pleaded nor raised before the judge. They are probably right in that. But I deal with the point out of an abundance of caution. The complaint deals with slots “liberated at short notice” - see Article 8(3) - by delay, or in the jargon a phenomenon known as “schedule shift”. The allegation is that airlines with slots from the declared capacity

"... commonly fail to meet or use the scheduled time of such slot. Accordingly, such slots are under the Regulation thereby ‘liberated at short notice’ and returned to the pool for ad hoc allocation."

It claims that tactical availability denies general aviation this opportunity, and so discriminates against them.

Schedule shift means nothing more or less than aircraft failing to meet their scheduled times for take-off and landing for whatever reason, usually unpredictable. That is a frequent occurrence and the system accommodates it by building “fire-breaks” into the scheduling in the middle of the day to provide some scope for recovery of the morning schedules, and to start the early evening schedules with the minimum of delay.

The short answer to this point is that scheduled flights when delayed, for whatever reason, still take-off and land and so have to be accommodated - their slot is not “liberated”, it is simply used at a later time. The allegation that schedule shift leads to liberation of slots which are then distributed on a discriminatory basis is not made out.

Ground 5 deals with the proposition that, under tactical availability, the level of available supplementary capacity for the day in question will be declared 12 to 18 days in advance, and reconsidered for possible increase at 0630 on the day in question and not thereafter. The complaint is that this is a breach of the Article 8(3) requirements to endeavour to accommodate “at all times” ad hoc slot requests for any type of aviation, including general aviation.

The new procedures lay down:

"At 0630 each morning, the NATS Watch Manager will decide whether, taking into account all the operating circumstances facing NATS eg weather, infrastructure constraints, ATC resource levels etc to allow a further increase in Tactical Availability in certain hours for that day."

That daily exercise was built into the new procedures as a result of the applicants’ response to the consultation paper requesting ACL “to allow access on an hourly/daily basis”. It is alleged that this is a breach of the Article 8(3) requirement “at all times to accommodate ad hoc requests”.

The applicants conceded before the judge that, absent their Article 8(3) point, ACL would be entitled to lay down that the supplementary capacity decision for the day be taken at 0630 without it being open to challenge on Wednesbury grounds.

The first answer given by the judge reflects the findings on Grounds 2 and 3 (and also 5 were it necessary to go that far), namely that Article 8(3) does not apply to the allocation of supplementary capacity. With that answer I agree, and there is no need to go further.

But even if supplementary capacity were to be allocated in accordance with Article 8(3), I find it impossible to see how, given the potential availability at short notice of pool slots, a Wednesbury challenge could be mounted to a decision taken for rational operational reasons to identify any daily supplementary capacity at 0630.

Ground 6 alleges that Tactical Availability is neither objective nor transparent:

"The learned judge should have found that the procedures were so vague as to grant a largely untrammelled discretion to NATS as to how and when to clear Tactical Availability."

Article 4, already summarised in this judgment, provides that the co-ordinator is responsible for the allocation of slots (Article 4(5)), and for monitoring the use of slots (Article 4(6)), that he will carry out his duties under Regulation 95/93 in an independent manner (Article 4(2)), and that

"he shall act in accordance with this Regulation in a neutral, non-discriminatory and transparent way."

Again, the first point is that Article 4 deals with actions under the Regulation, which does not include decisions on how to deal with supplementary capacity. But as it is well arguable that at common law all allocations of slots should be transparent and non-discriminatory, the respondents do not rest on that alone.

The paper on the new procedures dealt with controlling ad hoc operations. It set out the objectives of the procedure clearly. It dealt with all ad hoc operations. There were two sources of runway capacity available for such operations: pool slots (covered by Regulation 95/93) and allocated under the Prioritisation of Traffic Types under Article 8, and “Tactical Availability (short-term increase in capacity based on operational performance at Heathrow)”, allocated on a first-come, first-served basis, based on when the request to ACL was recorded, as explained in Article 10.

The declaration of tactical availability each Wednesday for the week 12 to 18 days ahead was by NATS to ACL. For on-the-day availability, the NATS Watch Manager would at 0630 decide, in the light of all the operational circumstances, whether to allow a further increase for the day, and would send this information to ACL.

The applicants complain of the part played by NATS - that it is NATS and not ACL who decide whether there will be runway capacity available. There are two reasons why that is sensible in the procedures aiming at obtaining maximum usage of the runway. First, NATS are best placed to be able to predict runway usage, they have the best information and the best overall picture of events. Second, ACL as co-ordinator, only allocates ground slots, while NATS allocated air traffic control slots. Without an air traffic control slot, a ground slot is useless. Both point to the good sense, when dealing with the decision whether to squeeze in extra capacity over and above the designated capacity, of this being initiated by NATS. But both responsibility for the allocation of slots and the monitoring of the use of slots remains with the co-ordinator.

The applicants arguments here are threadbare. Here there was a genuine consultation process over an extended period of more than a year, culminating in a twelve page document setting out in detail the new procedures. To suggest that the procedures are not transparent is not sensible. The object was equally clear - to strike a balance between striving to use all available capacity, while avoiding ad hoc operations adding to delays and congestion in peak hours. Market forces dictate that the priority given to general aviation will never be high. But when one considers the genuineness of the consultation exercise (of which more later) to suggest that it was not neutral and was discriminatory is not realistic.

That deals with all grounds of appeal for which leave was given. Two days before this trial was to be heard we were asked to consider referring a range of issues to the European Court of Justice. This application was clearly something of an afterthought. When it was made, the decision announcing the new procedures was more than a year old, these proceedings only slightly less than a year old and the new procedures had been in operation for that time too. Another 58 million-plus passengers had used the airport (15,000 of them from the general aviation sector).

The point of interpretation raised by the request for a reference is rightly identified by the respondents as being whether the co-ordinator’s duty to “endeavour to accommodate ad hoc requests” under Article 8(3) (which clearly includes slots available in the pool containing the slots described in Article 10(1)) extends to supernumerary ad hoc capacity over and above the declared capacity of the airport (supplementary capacity). The judge found:

"There is nothing in the regulation to require or even empower an airport co-ordinator to find and allocate capacity beyond that determined under the regulatory provision."

With that analysis I agree. Under the scheme of the Regulations, the competent authority, HAL, determines and declares the airport capacity, and the co-ordinator is liable under the Regulation for the allocation of that capacity. I regard the meaning and intent of the Regulation to be clear. Article 6 covers the determination and declaration of the airport capacity by the airport operator (the “competent authority”). The Regulations do not require the airport co-ordinator to seek to find additional capacity. And if he does find such capacity, the Regulation does not require its allocation under the Article 8(3) regime. It does not envisage, still less seek to lay down rules for, the allocation of take-off and landing opportunities over and above the declared capacity (ie not for the supplementary capacity) which is recognised and allocated ad hoc, whether by opportunity slot, or escape slot or tactical availability. The most that can be said is that the Regulation requires the airport co-ordinator at all times when allocating take-off and landing times (whether or not slots as defined in the Regulations) to be neutral, transparent and non-discriminatory. The matter seems clear to me, and I am not persuaded by the applicants’ submissions (not backed by evidence) that the difference in word order between the French and English texts is either significant or requires a reference.

In short, I see no case for imposing the delay consequent upon a reference to the resolution of this dispute involving procedures which have already been in operation for just over a year, and will be under continuous review.

When the single Lord Justice gave leave (2nd October 1998), he gave leave on the grounds dealt with above. He indicated that if the applicants wished to pursue their other grounds, application should be made to the Court “... preferably at the hearing in view of the time constraint”. I am unaware of what that time constraint was (certainly the application to refer to Europe pointed against there being any such constraint), but in my view it is almost always better to sort that question out finally at the leave stage, before the substantive appeal. It is unsatisfactory and wasteful of time and cost to deal with it when hearing the substantive appeal, as the practicalities then point to giving leave, and the appeal is thereby lengthened, and the intended rigour of the leave requirement is avoided, as we found here.

In the event we granted leave to appeal on two grounds, though with the wisdom of hindsight I doubt whether we were right to do so. The first is found in paragraphs 3 and 4 of the Application for Leave to Appeal, and the second in paragraph 11 of that document. The grounds are linked, but I will consider them separately.

I deal with Grounds 3 and 4 first. The complaint here is put this way: ACL (in common with NATS and HAL had concluded that ad hoc operations were “... regularly occurring in hours of peak congestion ... and exacerbating the delays to the airlines and their customers”, and the principles of the new procedures proposed were designed to reduce the delays. (See the first consultation paper, 12th November 1996).

ACL accepted that the applicants had a legitimate expectation of being consulted on these matters. The consultation period was initially to be 4½ months, but was extended a number of times, and eventually took up just under 18 months. The consultation was aimed at:

"... trying to find the right balance between a flexible system, which uses all available capacity, and a system which does not allow ad hoc operations to impact adversely on the efficiency of Heathrow operations by adding to congestion and delays in peak hours" (see the decision letter of 24th March 1998)

To this end they consulted in detail with the applicants over the Summer of 1997, including preparing at the applicants’ request some statistics in a report of 4th April 1997 which attempted to answer five questions posed by the applicants.

The applicants succeeded in persuading ACL that there were some “serious errors” in those statistics, based on incorrect assumptions, and consequently, under the decision letter heading “ Observation of the Current Opportunity Slot System ”, ACL, NATS and HAL:

"... in order to justify the need for changing the current system for controlling ad hoc operations at Heathrow ... completed an exercise to observe the workings of the Opportunity Slot system in detail."

They then set out two such exercises - one of two weeks in January 1998, and the other an analysis of ten days operational records, giving the qualification that:

"ACL, NATS and HAL are not suggesting that the events that they observed are statistically significant but we have reason to believe that they are not unrepresentative of the normal operation of the Opportunity Slot system."

These exercises were not disclosed to the applicants before the decision was announced, and so the applicants claimed that they were not properly consulted, and so the decision should be quashed.

Mr Morrisroe on behalf of ACL explained his reasoning. The consultation period had satisfied him that it was not possible to produce comprehensive data which conclusively proved the effect of the opportunity slot system - neither the original April 1997 analysis, nor the joint study which followed it (prepared by a group consisting of the applicants and ACL, NATS and HAL), nor HEJOA’s response were free from criticism. Additionally he:

"... did not believe that the principle that the opportunity slot system caused delay (by injecting additional movements into hours where delays were regularly experienced) was one which required detailed statistical evidence."

Accordingly, he set up those exercises:

"... not to produce data which would demonstrate that particular movements on a particular day were the direct cause of additional delay, [nor] to do so over a sufficient period such that the results might be regarded as statistically representative. I simply wished to satisfy myself that there was support for NATS’s concerns (which went back several years) and ACL’s about the effect of the opportunity slot system ..."

Accordingly, he asked NATS to undertake real time surveys over the two weeks in January, and Mr Budgen, General Manager for air traffic services at Heathrow undertook that exercise. His letter enclosing his report (23rd January) states:

"It is my opinion that this survey, together with all the technical work carried out to date and the operational experience of my ATC managers supports the view that the present systems is seriously flawed and is in need of urgent replacement. I recommend that we proceed with our Tactical Availability proposals with all haste."

He did not consider it necessary at that stage in the process to consult the applicants and other interested parties as to those surveys:

"The information merely provided examples of difficulties which had been highlighted already, both before and after the consultation process, and discussed at length."

The second exercise was an attempt “... to endeavour to identify the common ground between ACL and HEJOA in relation to the April analysis”. It was carried out by Mr Mathewson, of BAA’s research department. There was no disclosure because: “This review was merely a review of HEJOA’s comments. There was no need to perpetuate the process by seeking comments on comments.”

The scope of the inquiry and the consultation process fell within the discretion of ACL. The weight to be given to statistical evidence in relation to the day-to-day experience of those responsible for the running of Heathrow, and striking the balance between maximum utilisation and minimum delay were also a matter for ACL. They acted well within the boundaries of their discretion, and this line of attack on the decision-making process fails. There was nothing unfair in this consultation process.

We had cited to us R -v- Secretary of State for Health, ex parte United States Tobacco [1992] 1 QB 353. I am not assisted by that decision in this case. Clearly there are cases where the circumstances of the consultation process are such that the discovery of critical and central new evidence requires the re-opening of that process, but ACL were entitled to prefer the evidence of those with daily experience of peak hour delays to statistical surveys as to the accuracy and value of which there was no agreement. This consultation had, as all recognised contemporaneously, gone on long enough. Positions were entrenched - but clear. All parties were pressing for a decision.

The judge went on to express the view that in any event the applicants had lost any right to complain by not asking, at a time when they knew that ACL were conducting further studies, for those studies, but instead applying pressure for an immediate decision. The judge agreed with this. I am not sure I would have reached the same conclusion as the judge. In the light of my primary finding on this ground, I do not find it necessary to express a concluded view.

Lastly, Ground 11 also concentrates on Mr Budgen’s report and Mr Mathewson’s report. The attack is summarised in the applicant’s skeleton, paragraphs 62 to 68 and paragraph 70. It is contended that those statistical exercises are fundamentally flawed, and that by taking them into account, ACL took into account irrelevant matter.

I can deal with this shortly. As has already been made plain, ACL are a regulatory authority, charged with making the best use of runway capacity in the interests of the airport users. They are entrusted with the identification of the problem, and with the solution of the problem. They were entitled, indeed obliged, to seek the views of all airport regulators (such as NATS and HAL) as well as all aviation users of the airport. All questions of the weight to be given to those views were a matter for them, as was any preference for the perceived fruits of experience over statistics. They concluded (in the decision letter)

"ACL, NATS and HAL are firmly of the view that the present ‘Opportunity Slot’ system used on-the-day for controlling ad hoc movements at Heathrow fails to meet the needs of the vast majority of users of Heathrow in that it allows an overload of traffic at the airport during hours of peak congestion. (The Opportunity Slot system attempts to allocate ad hoc movements to ‘gaps’ which occasionally appear in the traffic at Heathrow). As a result of this overload delays are exacerbated and both the operators and their customers suffer."

The evidential material relied on to reach that conclusion is set out over ten pages entitled “ Material As to Effect of Opportunity Slot System ” in Appendix 3 to the Respondent’s skeleton argument put before Jowitt J in the judicial review proceedings. That summary of the material, which should be available as Appendix 2 to this judgment, clearly shows that ACL were acting well within their powers both as to the weight they gave to the evidence complained of, and in the overall conclusion they reached. This ground of appeal also fails.

In my judgment this appeal should be dismissed, and the request for a reference to Europe refused.

LORD JUSTICE WARD: I agree.

LORD JUSTICE SCHIEMANN: I also agree.

Appeal dismissed with costs. Leave to appeal to House of Lords refused.