England and Wales High Court (Administrative Court) Decisions

		Royal Courts of Justice Strand, London, WC2A 2LL
		Tuesday, 26 November 2002

Mr Justice Maurice Kay :

1. 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.

2. 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.
3. 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

4. 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]."

5. 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.
6. 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.

7. 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, that process must be carried out "properly" and proper consultation requires, among other things

"sufficient reasons for the particular proposals to allow those consulted to give intelligent consideration and an intelligent response."

See R v. North and East Devon HA, ex parte Coughlan [2001] QB 213, para 108, per Lord Woolf MR. Or, as Schiemann LJ put it in R (L) v. London Borough of Barking and Dagenham [2001] 2 FLR 763, para 13,

"consultation axiomatically requires the candid disclosure of the reasons for what is proposed."

Secondly, reasons for the exclusion of Gatwick having been given in the Consultation Document – an unwillingness to overturn the 1979 Agreement and "unnecessary blight and anxiety" – there are limits on the extent to which those reasons could lawfully be augmented by Mr. Fawcett in his witness statement. The authorities on this aspect of the case have been reviewed by Stanley Burnton J in R (Nash) v. Chelsea College of Art and Design [2001] EWHC Admin 538. Apart from cases where there is a statutory duty to give reasons, he identified these propositions (para 34):

"In [non-statutory] cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following…..

(a) whether the new reasons are consistent with the original reasons;

(b) whether it is clear that the new reasons are indeed the original reasons….;

(c) whether there is a real risk that the later reasons have been composed subsequently in order to support the….decision, or are a retrospective justification of the original decision…..

(d) the delay before the later reasons were put forward;

(e) the circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly "

Stanley Burnton J also referred to two further considerations of a general nature: (1) the degree of scrutiny and caution will depend on the subject-matter; and (2) the court should bear in mind the qualification and experience of the persons involved.

8. In the present case, as in many others, it is important to distinguish between, on the one hand, the giving of reasons and, on the other hand, the rationality of the given reasons. If I may say so, the ways in which the Claimants' cases have been put has sometimes elided those two things. So far as this first ground of challenge is concerned, I shall limit my consideration to the first of them, before returning to rationality later.
9. That there was a duty to give reasons for what was proposed – in this case, the exclusion of Gatwick – is clear. It is equally clear that the Consultation Document gave two reasons, namely the decision not to overturn the 1979 Agreement and the creation of unnecessary blight and anxiety. To the extent that Mr. Fawcett added to the first of those reasons in paragraphs 41 and 42 of his witness statement, in my judgment he was doing so permissibly. So was he when he gave further explanation of blight and anxiety, for example in paragraphs 52 and 53. What he said further explained the previously given reasons and was consistent with them. If the reasons had been left there, I do not think that it could have been said that there had been a failure to give reasons, whatever may be said about their rationality or Wednesbury compatibility.
10. What has caused me some concern, however, is the reference to a further reason in Mr. Fawcett's witness statement. This relates to the exclusion of Gatwick because of its unsuitability, by reason of the 1979 Agreement, to become an international hub airport. My concern is that, as the Consultation Document is inconclusive on the hub issue, it is strange to exclude Gatwick by reference to such a matter. Moreover, nothing in the Consultation Document, the pre-action correspondence or the grounds of resistence attached to the various Acknowledgments of Service made any reference to the unsuitability of Gatwick for development as a hub. If it had been a significant reason, I would expect to have seen an earlier reference to it. As it is, I find it difficult to say that it should now be accepted as a reason, having regard to the considerations set out by Stanley Burnton J in Nash. However, this is something which may have greater materiality when I consider rationality. For present purposes I limit myself to the finding that the Consultation Document itself complied with the requirement to give reasons for the exclusion of Gatwick and those reasons were to an extent permissibly elucidated in Mr. Fawcett's witness statement.

Ground 2: Irrationality and the Wednesbury challenge

11. Under this heading I am gathering together two challenges advanced on behalf of the Claimants. They are both Wednesbury based. Broadly they embrace (1) irrationality, and (2) failure to take account of relevant considerations.

(1) Irrationality

12. On behalf of Medway/Kent, Mr. Steel QC advances a fundamental submission on irrationality, based on Padfield v. Minister of Agriculture, Fisheries and Food [1986] AC 997, and in particular the speech of Lord Upjohn at pp 1060-1061. It is to the effect that the Secretary has provided no adequate or logical reasons for the exclusion of Gatwick and that I should therefore conclude that he had no adequate or logical reasons, with the result that the exclusion must be irrational. I do not accept this submission in that perfunctory form. As I have already held, the Secretary of State had and provided reasons. Whether or not they stand up to Wednesbury scrutiny calls for careful analysis.
13. The Claimants have mounted an onslaught on the reasons given by the Secretary of State and on the rationality, in the Wednesbury sense, of the decision to exclude Gatwick. The following is a list – albeit not a comprehensive one – of those criticisms:

(a) The reasons given in the Consultation Document for excluding Gatwick elevate a local interest above the national interest in the development of airport policy,

(b) This is compounded by the adoption of an approach whereby the Secretary of State would only contemplate taking legislative steps to overturn the 1979 Agreement "if there was demonstrably no alternative way forward".

(c) It is perverse to exclude Gatwick on the basis that, because of the 1979 Agreement, it could not become a hub airport within the appropriate time frame when, as the Consultation Document makes clear, no decision has been taken to promote a hub airport. That is an issue which is itself included in the consultation.

(d) There is no reason to exclude Gatwick even if the 1979 Agreement is to run its course to 2019 because about a third of the thirty year period will still remain and, in any event, the Consultation Document is open to the possibility of an increase in runway capacity at one or more of the other locations during that third decade.

(e) It is wrong to assume that an additional runway could not be operational until 2024. The 1979 Agreement only prevents "construction" before August 2019. It would be possible to complete the non-physical preparatory stages before then and to have a planned runway operative by 2021 or soon after.

(f) As the consultation period is designed to lead to a refinement of various assumptions – for example, in relation to the forecasting of passenger movements - it is premature to exclude any of the SERAS options at this stage, especially on e such as Gatwick which was assessed as being entirely feasible.

(g) Blight and anxiety will arise in relation to all options until finality has been achieved. There has been no comparative assessment in this regard, nor could there be until the consultation process is complete.

(h) The Secretary of State has assumed too readily that the 1979 Agreement presents an embargo on construction until 2019. Attitudes change and it was wrong to found assumptions on dated and untested material. It is possible that West Sussex County Council and BAA may at some stage agree to terminate the Agreement. The Executive of Crawley Borough Council resolved on 6 November 2002 to support the present application for judicial review, having previously been opposed to any relaxation of the 1979 Agreement. Gatwick is situated in the Borough of Crawley and the Council is the local planning authority.

14. It is appropriate to deal with point (h) first. It is certainly the case that the Secretary of State was of the view that there was no likelihood of the 1979 Agreement being terminated consensually by West Sussex County Council and BAA. In his witness statement Mr. Fawcett states:

"The Government was….aware that in January 1998, in a booklet entitled WeTrust in the Law, over a hundred councils and organisations, including West Sussex County Council, had formally expressed their support for West Sussex County Council in enforcing the 1979 Agreement for its full term, and for fighting by all possible means any attempt to overturn the Agreement by legislation."

This statement has generated a certain amount of heat. It has been ignited by a witness statement from Mr. Beresford – Knox, Head of Planning Services for Crawley Borough Council. His evidence is that Crawley Borough Council did not agree to its name being included (as it is) in We Trust in the Law and, in any event, the Council's Executive resolved on 6 November 2002 to support the applications for judicial review. It does not argue in favour of additional runway capacity at Gatwick but it believes that it is wrong to exclude Gatwick from the options offered for consultation, taking the view that circumstances have changed at a national, regional and local level since 1979 and that it is important that the Agreement should not prevent proper consideration of the options available whether before or after 2019.

15. The Claimants seek to make great play of this evidence. It is suggested that the Secretary of State misled himself when he relied on We Trust in the Law; that it was a dated document; that circumstances change views as is apparent from Crawley Borough Council; and that the Secretary of State ought to have taken rigorous steps to ascertain the current views of the parties to the 1979 Agreement and others, pursuant to his obligation "to take reasonable steps to acquaint himself with the relevant information" :Secretary of State for Education v. Tameside MBC [1977] AC 1014, 1065, per Lord Diplock.
16. I am unimpressed by these submissions. Even if Crawley Borough Council were erroneously named in We Trust in the Law the fact is that, at the time of its publication and until after the publication of the Consultation Document, the recorded view of that Council was one of support for West Sussex County Council in the enforcement of the 1979 Agreement. Moreover, whatever change of heart has recently manifested itself in Crawley, it has not been matched by any such movement in the West Sussex County Council. A witness statement from Michael Kendall , the County Secretary, makes that abundantly clear. In addition, one of the documents he exhibits is a Unilateral Statement of Intent by BAA made, it seems, in September 1999, and remaining in force until 31 December 2018, one of the provisions of which was to confirm that the 1979 Agreement was "unaffected by this Statement of Intent". In my judgment, for the Secretary of State to have proceeded on the basis that a consensual termination of the 1979 Agreement was not foreseeable was not unreasonable or otherwise susceptible to challenge.
17. I therefore return to points (a) – (g). The question is whether, separately or cumulatively , they are such as to render the exclusion of Gatwick options from the consultation process irrational or such that no reasonable Secretary of State could have so excluded them at this stage. I take the view that there is some, albeit not necessarily equal, force in each of these seven points. I would place the greater emphasis on points (c), (d), (f) and (g). On this basis, have the Claimants made good their Wednesbury challenge? In my judgment, they have. Mr. Corner sought vigorously to resist such a conclusion but, upon analysis, he was seeking to defend the indefensible . Moreover, even if I have overvalued the submissions made by reference to this ground of challenge, it seems to me that I should also take into account here the conclusions I have reached elsewhere concerning unfairness and the implications of conservation obligations. They fortify my finding that the irrationality challenge must succeed.
18. I make it clear that, although I have well in mind the importance of the future development of air transport and my duty to detach myself from the ultimate policy merits, I do not accept Mr. Corner's submission that the questions raised by this case are matters of such high policy that they are challengeable only on the basis of bad faith (which is not alleged), as in Marchiori v. Environment Agency [2002] EWCA Civ 3. I consider them to be reviewable on traditional judicial review grounds although I accept that it behoves me to approach them with particular care

(2) Failure to take account of relevant considerations

19. I do not propose to revisit under this sub-heading considerations which I have covered more appropriately elsewhere. I confine myself to matters which, if they are to achieve significance, can only do so by reference to this sub-heading.
20. One of the categories of relevant considerations relied upon by Essex (and, by adoption, Medway/Kent) is the human rights of local residents. The Mead/Fossett case on human rights is mainly put in a different way and I shall return to that as a discrete ground of challenge later. On behalf of Essex, Mr. Ash QC concedes that, as a public authority, it cannot be a "victim" within the meaning of section 7 of the Human Rights Act 1998 and Article 34 of the European Convention on Human Rights. However, he submits that, although Essex does not have standing to pursue a "victim" claim, it can nevertheless rely on the rights of its inhabitants under Article 8 of the Convention and Article 1 of the First Protocol (as to both of which, see Ground 6, below) in relation to a ground of challenge based on a failure to take account of those rights as relevant considerations. In my judgment, that would be to seek to achieve indirectly what the law plainly does not allow directly: see Westminster City Council v. Mayor of London (31 July, 2002). I do not consider that it is open to a public authority to invoke the human rights of private individuals in that way.
21. I therefore turn to the other ways in which it is suggested that the Secretary of State failed to take account of relevant considerations. It is submitted on behalf of Essex that the Secretary of State has failed to take account of the implications for airlines, airport service providers and airport users of providing no additional capacity at Gatwick for the next thirty years. I do not consider that this ground is sustainable. For one thing, these matters did receive some consideration in the SERAS study which was undoubtedly taken into account. Moreover, the Essex case is overstated. There is a potential for a significant increase in passenger movement at Gatwick in the next thirty years even without the construction of further runway capacity. In addition, there is no challenge or evidence from the airlines, airport service providers or airport users in support of the Essex case. It would be somewhat bizarre if a local authority north east of London were to obtain judicial review of a consultation document based on the implications for absent and silent commercial interests in relation to an airport south of London.
22. Much of the Mead/Fossett case on relevant considerations is a reformulation of what I consider in other parts of this judgment. However, it is appropriate that I refer here to one of the submissions of Mr. Hobson QC. It is to the effect that the Secretary of State failed to consider the fact that, as a result of the exclusion of the Gatwick options, the Claimants would be required to bear an increased burden in terms of blight, namely the part of that burden which might otherwise have been borne by residents in the vicinity of Gatwick. The evidence of Mr. Fawcett is that it was considered desirable to focus the consultation on a limited number of options "so as to keep to a minimum the number of locations at which people would suffer blight and anxiety in the period between the publication of the Consultation Document and the publication of…the White Paper". The Secretary of State was well aware that in relation to every candidate area left open by the Consultation Document there would be negative impacts, including impacts on the value of residential property. Mr. Corner submits that this is unavoidable and that the implications of the exclusion of Gatwick for the residents in the Stansted area are unprovable, unpredictable and immeasurable. I agree and find nothing of substance in this ground of challenge.

Ground 3: the Secretary of State had a "closed mind" or fettered his discretion

23. This ground of challenge is advanced, in slightly different ways, on behalf of Kent/Medway and Mead/Fossett. One way or another, the submission is that the Secretary of State has closed his mind to any other approach to the 1979 Agreement or has fettered his discretion in relation to it. This ground is advanced in addition to the other challenges such as irrationality or insufficiency of reasons.
24. On behalf of Kent/Medway, it is submitted that the closed mind is evidenced by the refusals of the Secretary of State to reconsider the Gatwick options following invitations to do so in letters of 13 August 2002 and 12 September 2002. It is suggested that the Secretary of State had a closed mind on the subject of the 1979 Agreement and Gatwick, notwithstanding professions of open – mindedness in the Consultation Document. In the Mead/Fossett case, this is reformulated as a fettering of discretion. It is suggested that Windsor and Maidenhead Royal Borough Council v. Brandrose Investments Limited [1983] 1 WLR 509 is an important illustration of the principle in the context of an agreement under section 52 of the Town and Country Planning Act 1971. In that case a local planning authority was not prevented by a section 52 agreement or a planning permission which would involve the demolition of existing buildings from extending a conservation area in a way which included the same buildings. In the words of Lawton LJ (at p.515):

"It is trite law that a statutory body which has public duties to perform (and a local planning authority is such a body) cannot lawfully agree not to exercise its powers."

Indeed, that is apparent from section 52(3). However, that is a different situation from the present factual matrix, in which the Secretary of State, who is not a party to the 1979 Agreement, has decided not to seek to bring about its overturning.

25. It is apparent from the Consultation Document that

"the Government has decided that it does not intend to take action to overturn the 1979 Agreement."

This leads Mr Corner to submit that the Secretary of State clearly realised that it was possible to take action to overturn the 1979 Agreement, considered whether to do so but decided not to do so and that, in these circumstances, it cannot be said that this was a case of a closed mind or a fettered discretion. Rather it was a case of determining the parameters within which a policy will eventually be formulated and consulting within those parameters.

26. In my judgment, subject to other issues such as those raised by the other grounds of challenge in this case, the Secretary of State was entitled to proceed in that way. Other things being equal, it was permissible for him to narrow the range of options within which he would consult and eventually decide. Consultation is not negotiation. It is a process within which a decision-maker, at a formative stage in the decision-making process, invites representations on one or more possible courses of action. In the words of Lord Woolf MR in ex parte Coughlan [2001] QB 213 at para 112, the decision maker's obligation

"is to let those who have potential interest in the subject-matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."

I conclude that, absent any other vitiating feature, the Secretary of State did not act unlawfully simply by defining the parameters so as to exclude Gatwick or by holding to that position. That was not an unlawful fettering of his discretion or closing of his mind.

Ground 4: unfairness

27. Both the Medway/Kent and the Mead/Fossett challenges seek to raise a free-standing issue of unfairness. The jurisprudential basis upon which they rely is founded upon statements such as that of Kerr LJ in R v. Governors of Haberdashers' Aske's Hatcham Schools, ex parte ILEA [1989] COD 435, 436:

"….the adequacy of consultation is in many cases part of the law of procedural fairness."

It was there acknowledged that it is possible to envisage circumstances where, although a decision is not Wednesbury unreasonable, there may still be unfairness which calls for the intervention of the court on an application for judicial review. In R v. London Borough of Islington, ex parte East [1976] ELR 74, Keene J, relying in a passage in the judgment of Simon Brown LJ in R v. Devon County Council , ex parte Baker [1995] 1 All ER 73, 92, said (at p.88):

"….the precise demands of consultation….vary according to the circumstances….The extent and method of consultation must depend on the circumstances. Underlying what is required must be the concept of fairness…."

See also Regina v. Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763 which, although not a consultation case, is further illustrative of the demands of fairness in public law.

28. At one stage Mr. Corner seemed to suggest that, as all these authorities predate R v. North and East Devon HA, ex parte Coughlan [2001] QB 213, they have been superseded as determinants of what is required in relation to consultation, be it in a process required by statute or one undertaken voluntarily. It is true that the four requirements set out in Coughlan do not expressly adopt the language of "fairness". However, I reject the suggestion that fairness has ceased to be a requirement of a lawful consultation process. It is an aspect of what is "proper" – the word used in Coughlan (para 108). Moreover, as a matter of archaeology, the four-fold test referred to in Coughlan is derived in turn from R v. Brent London Borough Council (1985) 84 LGR 168, which preceded the "fairness" cases in this area and expressly informed at least one of them (R v. Warwickshire District Council, ex parte Bailey [1991] COD 284). In my judgment, it is axiomatic that consultation, whether it is a matter of obligation or undertaken voluntarily, requires fairness. In the end, Mr. Corner did not dispute this.
29. What, then, is the unfairness which is alleged in the present case? It is submitted that, one way or another, Gatwick will have to be considered in the future and that is obvious. For example, in the event of a future planning application in relation to Cliffe, Medway/Kent, as objectors, would seek to promote Gatwick as an alternative but, at that stage, the metaphorical dice would be loaded against them. They would be arguing against Government policy enshrined in the White Paper.
30. It would be "very difficult if not impossible" to persuade an Inspector, or even more so, the Government itself, to go against such weighty policy. On the other hand, if they were enabled to make their representations in the course of the present consultation process that would provide the only opportunity for them to be considered on a level playing field. Similar arguments are advanced on behalf of Mead/Fossett in relation to Stansted and, more obliquely, on behalf of Essex. In a nutshell, therefore, the alleged unfairness is in being prevented from making representations about Gatwick at a time and stage when the consideration of such representations is not constrained by adopted Government policy.
31. It cannot be doubted that the Claimants are disadvantaged by the exclusion of Gatwick options from consideration in the consultation process. The question is whether that process is tainted with unfairness as a result of that exclusion. The submission on behalf of the Secretary of State is that (1) the requirement of fairness cannot remove from him all discretion as to what is to be included or excluded from the consultation process and (2) the requirement of fairness is limited to procedural fairness whereas what is alleged here is more in the nature of a lack of substantive fairness in that it goes to a decision rather than the way in which it is reached.
32. I do not accept the first of those submissions. It is for the Court to decide what is or is not fair. If a consultation procedure is unfair, it does not lie in the mouth of the public authority to contend that it had a discretion to adopt such a procedure. The question is whether the procedure in the present case is fair or unfair. That brings me to Mr. Corner's second submission. I accept that fairness in this context is synonymous with procedural fairness rather than substantive fairness which concerns the effect of a decision as opposed to the way in which it was reached. However, it is important not to be too schematic in considering this distinction. The decision-making process with which this case is concerned began before the Consultation Document was published and it will continue through the White Paper, probably to the determination of one or more planning applications at Secretary of State level. It is common ground that the issue of Gatwick will probably re-emerge, if only as a proffered alternative solution. The question really becomes this: knowing that the Claimants will probably and legitimately wish to advocate Gatwick as an alternative solution at a later stage in the decision-making process, is it procedurally unfair of the Secretary of State to operate the consultation process in such a way that the Claimants lose their only real opportunity to present their case on Gatwick without there being in place a Government policy which, realistically, will present them with an insurmountable hurdle? In my judgment, when one considers the decision-making process as a whole, the answer is that to operate the consultation process in that way is indeed procedurally unfair. Accordingly, this ground of challenge succeeds.

Ground 5: conservation obligations

33. This ground of challenge relates only to the Medway/Kent case and derives from the importance of the Cliffe site in conservation and environmental terms. The site includes the Thames Estuary and Marshes Special Protection Area and the Northwood Hall Site of Special Scientific Interest and National Nature Reserve. It is also a site designated as having exceptional value as wetlands of international importance, especially as a waterfowl habitat, pursuant to the Ramsar Convention on Wetlands of International Importance. In short, it is the subject of a very high level of protection in domestic law and as a result of international obligation. Of particular significance are Regulations 48 and 49 of the Conservation (Habitats etc) Regulations 1994 which provide:

"48(1). A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for a planning project which-

(a) is likely to have a significant effect on a European site….

shall make an appropriate assessment of the implications for the site in view of that sites conservation objectives…..

49(1) If they are satisfied that, there being no alternative solutions, the plan must be carried out for imperative reasons of overriding public interest….the competent authority may agree to the plan or project notwithstanding a negative assessment of the implications for the site."

The case for Medway/Kent is that, given those constraints upon any grant of planning permission at Cliffe, there will be an obligation to consider any reasonable alternatives and this will necessarily include consideration of Gatwick. It is therefore irrational for the Secretary of State to exclude consideration of Gatwick from the present consultation process. On behalf of the Secretary of State it is conceded that if proposals were to be brought forward for the development of Cliffe, Gatwick would have to be considered at that stage as an "alternative solution". However, Mr. Corner submits that Medway/Kent are ignoring the difference between Government policy and the fact that, when determining a planning application, the decision-maker has to take into account all material considerations, including, but not limited to, Government policy. Moreover, it is not inevitable that Cliffe will be included in any expansion policy set out in the White Paper. If it is, then Medway/Kent concerns will have to be rigorously considered in the light of the criteria in Article 49.

34. This is a difficult issue. The evidence of Mr. Fawcett is to the effect that Ministers "were fully aware of the potential ecological impacts of the Cliffe option". It was appreciated that any land, or ecological functions of that land, which would be lost from the Special Protection Areas on the Ramsar site would require compensatory measures to recreate the lost habitat elsewhere and that it would be necessary to protect the bird population that currently use the site in a way which would not unfavourably affect the conservation status of the species concerned. Mr. Fawcett states:

"Ministers have not yet attempted to come to a final decision on whether [these] matters can be satisfied, but they have concluded that there is a sufficient possibility of doing so that the Cliffe option can be considered in the public consultation. Ministers have yet to decide whether there are any viable alternatives to Cliffe, or, if not, whether it should proceed for imperative reasons of overriding public interest. But Ministers have decided that there is a realistic possibility of coming to such a conclusion, and that the option should therefore be concluded in the consultation."

35. It follows from all this that the Consultation Document contemplates a serious possibility that the White Paper will express a policy which includes the development of Cliffe but that, at the moment, the Government has not decided whether there are any viable alternatives or whether imperative reasons of overriding public interest resolve the matter in favour of Cliffe. I therefore infer that it has not decided that Heathrow and Stansted, separately or together, would amount to a viable alternatives or, indeed, that Heathrow, Stansted and Gatwick, separately or together, would not. Moreover, if it may be the case that Gatwick, by itself or with one or both of the others, would be an or the alternative solution, that would have the potential to impact upon the question whether or not there were imperative reasons of overriding public interest in favour of Cliffe.
36. I have come to the conclusion that, in the context of these conservation considerations, it was irrational to exclude all Gatwick options from the consultation process.

Ground 6: human rights

37. I now turn to the human rights challenge advanced on behalf of Norman Mead and David Fossett:

(1) Article 8

Article 8 provides:

"(1) Everyone has the right to respect for his private life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the preservation of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms and others."

38. Norman Mead lives in Great Hallingbury, a village in Hertfordshire, which is close to Stansted. He is chairman of his Parish Council and his other community involvements include the chairmanship of "Stop Stansted Expansion", which was founded in August 2002. His witness statement contains a detailed description of the area in all its undoubted rural and ecological glory. It is not suggested that his description is anything other than fair and accurate. It includes references to fifteen Sites of Special Scientific Interest, ancient woodlands and wildlife trust reserves. It pays particular attention to Hatfield Forest and the Dedham Vale area. It also addresses the potential environmental impact of the expansion of Stansted, referring to noise and air quality. It states that the Consultation Document is already having an adverse effect on property values and refers to a recent valuation on a specific property.
39. David Fossett lives in another village near Bishop's Stortford. His house is one of those that will be demolished if a new runway is developed at Stansted. His neighbour's house is a Grade 1 listed building and that would suffer the same fate. Mr. Mead and Mr. Fossett both refer to blight and anxiety caused by the Consultation Document. Their points are well made. It is impossible not to sympathise with them. However, the question that I have to consider is whether the decision to exclude the expansion of Gatwick from the Consultation Document breaches their human rights.
40. There are numerous examples of industrial land use interfering with the right of respect for a person's private life or home. Reliance is placed on authorities such as Sporrong and Lonroth v. Sweden (1982) EHRR 35, Lopez Ostra v. Spain (1995) 20 EHHR 277, Powell and Rayner v. United Kingdom (1990) 12 EHRR 355, Hatton v. United Kingdom [2002] 34 EHRR 1 and Marcic v. Thames Water Utilities [2002] 2 WLR 932. None of these authorities is concerned with an inchoate proposal of the kind included in the Consultation Document. They are all concerned with decisions, activities or omissions which were already having their effect at the date of complaint. Lopez Ostra was concerned with a polluting factory, Powell and Rayner and Hatton with aircraft noise generated by flights at Heathrow and in Marcic the claimant's house had been damaged by flooding from sewars. Guerra v. Italy (1998) 26 EHHR 357 (toxic emissions) and S v. France (1990) 65 DR 250 (nuisance from a nuclear power station) are to like effect. Sporrong is rather different, being concerned with the effect on property values of decisions of central and local government permitting expropriation and preventing development with consent. It was not concerned with direct physical effects but it related to the effects of actual measures and not merely proposals.
41. Mr Corner submits that this line of authority is distinguishable from the situation which exists in the present case. Here no authorisation or permission has been given, or is for determination, which can be said to interfere with the Article 8 rights of Norman Mead, David Fossett or anybody else. Nor is it inevitable that such authorisation or permission will be given. What is taking place is simply a consultation with a view to framing national policy. In my judgment, these submissions are undoubtedly correct. It would need an enormous and unwarranted expansion of Article 8 to hold that, by consulting on a range of options, the Secretary of State was interfering with Article 8 rights of persons who would be disadvantaged by the absence of further options. If that were to be the price of consultation, the undesirable consequence would probably be a reduction in consultation.
42. There is another aspect to all this. The immediate cause of any present disadvantage to property values and residents in the Stansted area (for example, any adverse effect on property values in the period between the publication of the Consultation Document and the White Paper) derives not from the exclusion of Gatwick from the options but from the inclusion of Stansted, which no one is suggesting to be unlawful in any way. The way in which Mr. Hobson seeks to put the case is on the basis that the inclusion of Gatwick would have reduced or diffused the adverse consequences around Stansted. In my judgment, that is conjectural and unquantifiable and it falls far short of engaging Article 8.
43. For all these reasons I do not consider that Norman Mead and David Fossett have crossed the threshold of Article 8(1). I reach this conclusion without having to accede to Mr. Corner's invitation to approach Hatton with scepticism on the ground that it does not form part of the "clear and constant jurisprudence of the European Court of Human Rights", those being the words of Lord Slynn of Hadley in R (Alconbury Limited) v. Secretary of State for the Environment [2001] 2 WLR, 1389, para 26. In other words, I was being invited to treat Hatton as something of a rogue decision – a view clearly consistent with that of the Secretary of State on whose behalf it was being heard by the Grand Chamber of the Strasbourg Court concurrently with the hearing in the present case. It is also unnecessary for me to decide whether, if an Article 8 interference had been established, it was justified under Article 8(2), although I make it clear that, if it had been necessary, I would have held that the interference was justified.

(2) Article 1 of the First Protocol

44. Mr Hobson also seeks to rely on Article 1 of the First Protocol which provides:

"Every national or legal person is entitled to have peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the condition provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

I accept Mr. Corner's submission that there is no more mileage in this provision in the present circumstances than there is in Article 8 – and for substantially the same reasons.

Ground 7: proportionality

45. The Essex and Mead/Fossett challenges seek to raise a separate ground of proportionality. Reliance is placed on the speech of Lord Slynn of Hadley in R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 (at para 51):

"I consider that even without reference to the Human Rights Act 1998 the time has come to recognise this principle [i.e. proportionality] is part of English Administrative Law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing. Reference to the Human Rights Act 1998 however makes it necessary that the court should ask whether what is done is compatible with Convention rights. That will often require that the question should be asked whether the principle of proportionality has been satisfied."

Mr. Ash's submission concentrates on the first sentence in that paragraph, which, he suggests, shows that proportionality is an independent ground for judicial review, irrespective of whether the decision in question involves human rights or principles of European Law. On this basis it is disproportionate to exclude Gatwick options primarily because to do so elevates a section 52 agreement entered into purely in a local interest above the national interest in securing the optimum solution for the future of air transport in the United Kingdom for the next thirty years. Mr. Hobson also submits that the 1979 Agreement has been given disproportionate weight and that the Secretary of State has failed to weigh in the balance the fact that in 1985 the Government of the day had observed in a White Paper that the Inspector who had presided over the Stansted Inquiry had recommended as a condition for the grant of planning permission that the Government should make an unequivocal declaration of intent that a second runway would not be constructed. The Government accepted that recommendation "unreservedly".

46. I have already held that Convention rights are not engaged in this case. Nor does any issue of Community Law arise. Thus for the proportionality challenge to succeed it must do so purely within the confines of domestic law. The question therefore arises as to whether proportionality has a discrete part to play in domestic law. Mr Corner submits that when one reads the passage from Lord Slynn's speech as a whole it is apparent that he was concerned with proportionality in the context of Convention rights. Moreover, if there were any doubt about that, it is resolved by the speech of Lord Steyn in R (Daly) v. Secretary of State for the Home Department [2001] 2 AC 532 Lord Steyn was specifically addressing "the contours of the principle of proportionality" (para. 27). Throughout he was concerned with Convention rights. When he invoked Lord Clyde's three – stage test in de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80 (PC), it is significant that, whereas that case was not concerned with the Convention, it was concerned with the limitation of a fundamental right.
47. In my judgment, the greater intensity of review which is required by the proportionality test does not arise in domestic law where there is no engagement of a Convention right and no fundamental right is in play. The test remains Wednesbury. There is no room for a proportionality challenge in the present case. It is important that proportionality is confined to its proper role and is not allowed to run amok as the "unruly horse" of the new era.

Ground 8: legitimate expectation

48. This ground is only advanced on behalf of Norman Mead and David Fossett. Their case is that in the lead up to the Consultation Document the Secretary of State had stated that he would "consult widely" in relation to the eventual White Paper (A New Deal for Transport – Better for Everyone, 1998); that he recognised "the importance of taking into account all views of interested parties" on "all options for future development" in the South East (The Future of Aviation, 2000). In addition, options involving an increase in runway capacity at Gatwick were included amongst the considered options at all three stages of the SERAS study. Indeed they were assessed very favourably in that study, featuring in the three highest ranking SERAS packages when assessed by reference to cost/benefit criteria and in five of the nine highest ranking packages by reference to criteria based on the net benefit per million passengers per annum of additional capacity. All this, is submitted, gave rise to a legitimate expectation that Gatwick options would be included in the Consultation Paper. These might have been based on alternative contingencies that the 1979 Agreement would or would not remain in place. In the former case, the Gatwick options would relate only to construction after 2019. The legitimate expectation is also conditioned by the reality that, if Gatwick options are ruled out at this stage, the Claimants will face insuperable difficulties in raising them as alternative solutions in opposing any future planning application at Stansted.
49. Mr. Hobson seeks to rely on the passages on legitimate expectation in the judgment of Lord Woolf MR in ex parte Coughlan, at paras 55-60. However, it seems to me that those passages are more concerned with the role of the court in different situations where a legitimate expectation is established rather than with the prior question of whether there is a basis for legitimate expectation in the circumstances of a particular case. What is beyond dispute is that for a legitimate expectation to exist, the person asserting one must be able to point to something in the nature of a promise, policy, practice or other conduct which gives rise to it. The case for the Secretary of State is that there was no such catalyst in the present case.
50. In R (Bibi) v. Newham LBC [2002] 1 WLR 237, Schiemann LJ extracted from the authorities the following principle (at para 19):

"In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or promise, committed itself."

The second question relates to whether it has acted or proposes to act unlawfully in relation to that commitment and the third question is as to what the court should do about it. I agree with Mr. Corner that the real issue in the present case relates to the first of these questions.

51. It is abundantly clear that the Secretary of State at no stage committed himself to overturning the 1979 Agreement or to consulting on whether it should be overturned. Moreover, the two quotations from The Future of Aviation were not juxtaposed in that document. The reference to "all options" was in the context of what SERAS would consider. It was not a commitment to consult on "all options". The SERAS study was preceded by an Appraisal Framework (which had itself been the subject of consultation). It referred to the various stages of the SERAS study, leading to "the identification of 3 or 4 packages for public consultation" (para 5.6). In my judgment that is the highest at which any commitment to consultation can be put. In any event, the Consultation Document refers to nine options involving the three locations of Heathrow, Stansted and Cliffe. I do not consider that the inclusion of Gatwick in the options considered by the SERAS study or anything that was said or done prior to it gave rise to a commitment upon which a legitimate expectation can be grounded, either in relation to the thirty year period or that part of it which will commence in August 2019.

Conclusion

52. It follows from what I have said that these applications for judicial review succeed on Grounds 2(1), 4 and 5 but fails on the other grounds. My provisional view is that the appropriate relief should simply be a quashing order in relation to the decision to exclude all Gatwick options from the Consultation Document but I shall gladly hear counsel further as to relief if so invited.
53. I take the opportunity to thank all Counsel and those instructing them for their most helpful conduct of this case. I do not pretend to have dealt with all their submissions. I have confined myself to what I consider to be the essentials and have endeavoured thereby to hand down this judgment (almost) within the timescale indicated.