Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN On the application of
(1) MEDWAY COUNCIL and KENT COUNTY COUNCIL
|(2) ESSEX COUNTY COUNCIL
|(3) NORMAN MEAD and DAVID FOSSETT
|- and -
|SECRETARY OF STATE FOR TRANSPORT
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Brian Ash Q.C. and Thomas Hill (instructed by Legal Services, Essex County Council) for Claimant (2)
John Hobson. Q.C. and Lisa Busch (instructed by Charles Russell Solicitors) for Claimants (3)
Timothy Corner Q.C. and Robert Palmer (instructed by the Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Maurice Kay :
"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.
Ground 1: the Secretary of State's reasons for excluding Gatwick
"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]."
"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.
"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  QB 213, para 108, per Lord Woolf MR. Or, as Schiemann LJ put it in R (L) v. London Borough of Barking and Dagenham  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  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.
Ground 2: Irrationality and the Wednesbury challenge
(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.
"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.
(2) Failure to take account of relevant considerations
Ground 3: the Secretary of State had a "closed mind" or fettered his discretion
"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.
"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.
"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
"….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  ELR 74, Keene J, relying in a passage in the judgment of Simon Brown LJ in R v. Devon County Council , ex parte Baker  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  1 WLR 763 which, although not a consultation case, is further illustrative of the demands of fairness in public law.
Ground 5: conservation obligations
"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.
"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."
Ground 6: human rights
(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."
(2) Article 1 of the First Protocol
"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
"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".
Ground 8: legitimate expectation
"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.