QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF AIRPORT PARKING AND HOTELS (BIRMINGHAM) LIMITED||(CLAIMANT)|
|THE CIVIL AVIATION AUTHORITY||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR JR MCMANUS QC & MISS SJ DAVIES (instructed by the Civil Aviation Authority) appeared on behalf of the DEFENDANT
Crown Copyright ©
"The transportation of customers using Birmingham International Airport between the airport premises and the licensees' airport car park site."
This reflected what was the fact, namely that Airparks Services (Birmingham) Limited had a car park which was some distance away from the premises known as Birmingham International Airport. BIA, for its part, by clause 5 of the licence agreed amongst other things to provide the facilities set out in schedule 2. Schedule 2 provides as follows:
"1. A position for a courtesy telephone in a baggage reclaim hall of a main terminal at the airport premises.
2. A vehicle bay on the roadway to the front of the main terminal at the airport premises, for use by the licensee's vehicles when setting down and picking up customers only.
3. A sign showing the licensee's name adjoining the vehicle bay."
The licence also contained various other terms and provisions, which it is not necessary for me here to set out. By clause 14 it was, amongst other things, provided that the licensee would pay to BIA a license fee of £3,500 per year from the commencement date.
"(1) The CAA may, if it thinks fit in the case of any airport which is not a designated airport, impose in relation to the airport such conditions as are mentioned in section 40(2), either at the time of granting a permission under this Part in respect of the airport or at any other time while it is in force.
(2) Where, at the time of granting a permission under this Part in respect of an airport (whether a designated airport or not) or at any other time while such a permission is in force, it appears to the CAA that the airport operator pursuing one of the courses of conduct specified in subsection (3), then (subject to subsection (6) and section 42) the CAA, may if it thinks fit, impose in relation to the airport such conditions as it considers appropriate for the purpose of remedying or preventing what it considers are the adverse effects of that course of conduct.
(3) The courses of conduct referred to in subsection (2) are-
(a) the adoption by the airport operator, in relation to any relevant activities carried on by him at the airport, of any trade practice, or any pricing policy, which unreasonably discriminates against any class of users of the airport or any particular user or which unfairly exploits his bargaining position relative to users of the airport generally.
(b) the adoption by the airport operator, in relation to the granting the rights by virtue of which relevant activities may be carried on at the airport by any other person or persons, of any practice which-
(i) unreasonably discriminates against persons granted any class of such rights, or any particular grantee of such a right, or unfairly exploits his bargaining position relative to the grantees of such rights generally or
(ii) unreasonably discriminates against any class of persons applying for such rights or any particular applicant, or unreasonably limits the number of such rights that are granted in the case of any particular services or facilities
or which has resulted in the adoption by any other person of a practice that does any of those things.
(c) the fixing by the airport operator of any charges levied by him at the airport in relation to any relevant activities carried on by him there ..."
Section 41(6) provides as follows:
"Before imposing any conditions under subsection (2) in relation to an airport, the CAA shall notify the airport operator concerned of the course of conduct within subsection (3)(a), (b) or (c) which it appears to the CAA that he is pursuing and of the condition which the CAA proposes to impose and if, within such period as may be prescribed, the airport operator notifies the CAA that he objects to its proposals, the CAA-
(a) shall not proceed with the implementation of those proposals; but
(b) may instead make a reference to the Commission in respect of the airport under section 43(3)."
It may be noted that by section 41(6) the right to refer the matter to the Commission is conferred on the CAA (on objection by the airport operator) and not on anybody else.
"In this Part
'airport charges' in relation to an airport, means
(a) charges levied on operators of aircraft in connection with the landing, parking or taking off of aircraft at the airport (including charges that are to any extent determined by reference to the number of passengers on board the aircraft, but excluding charges payable by virtue of [section 73 of the Transport Act 2000 (charges for services))] and
(b) charges levied on aircraft passengers in connection with their arrival at, or departure from, the airport by air."
"Relevant activities" are defined in this way:
"'Relevant activities' in relation to an airport, means the provision at the airport of any services or facilities for the purposes of-
(a) the landing, parking or take off of aircraft;
(b) the servicing of aircraft (including supply of fuel); or
(c) the handling of passengers or their baggage or of cargo at all stages on airport premises (including the transfer of passengers, their baggage or cargo to and from aircraft).
(2) It is hereby declared that the reference in the definition of 'relevant activities' in subsection (1) to the provision of facilities for the purposes of the handling of passengers does not include the provision of facilities for car parking, for the refreshment of passengers at the airport or for the supply of consumer goods or services there."
"I confirm that I am prepared to recommend to the Airport Directors that you be granted a Licence to operate on the following basis:
1. The Licence to be a period of 5 years from 11 July 2002
2. The Licensee is to pay to the airport company a fee of 4% turnover."
I need not read the rest of that letter. The Claimant considered this objectionable on the ground that these terms constituted, as it were, an unfair exploitation of the bargaining position of the airport or, putting it another way, an abuse of a dominant position.
"whether OFT would consider and investigate a complaint made by the claimant in relation to substantially the same matters as have already been looked at by the CAA; and
whether any such consideration would be 'without reference to the reasonings, assumptions and findings' of the CAA Decision."
The letter went on to say:
"On the first point, there is no legal bar to an investigation by the OFT under the Competition Act 1998 even though the matter has already been looked at by the CAA. The OFT does, however, have a discretion as to whether, and how far, to investigate any matter formally, subject to its own administrative priorities.
On the second point OFT would not be bound by the CAA decision which is taken under different legislation. We cannot, of course, rule out the possibility that following analysis of the facts we may come to the same conclusion as the CAA."
"By way of further clarification, the OFT would not regard itself as being even informally bound by a decision of the CAA taken under the Airports Act 1986."
The letter then goes on to deal with points relating to a Concordat made in 1997 and certain arguments raised regarding concurrency as to jurisdiction. The letter concludes in this way:
"Pursuant to s86 of the Transport Act 2000 the CAA has concurrent powers with the Director to apply CA98 to the supply of air traffic services. However, the phrase 'air traffic services', as defined as at s98 of the Transport Act 2000, does not include the activities at issue in the present case, and therefore only the Director has jurisdiction to enforce the CA98 prohibitions in respect of the activities at issue. In any event, as stated above, no view is taken as to the scope of the CAA's jurisdiction in the context of the Airports Act 1986 with regard to those activities."
"The CAA shall perform its functions under those sections in the manner which it considers is best calculated-
(a) to further the reasonable interests of users of airports within the United Kingdom;
(b) to promote the efficient, economic and profitable operation of such airports;
(c) to encourage investments in new facilities at airports in time to satisfy anticipated demands by the users of such airports; and
(d) to impose the minimum restrictions that are consistent with the performance by the CAA of its functions under those sections
and section 4 of the 1982 Act (general objectives of the CAA) shall accordingly not apply in relation to the performance by the CAA of those functions."
My attention was also drawn to paragraph 3 of the Concordat made in 1997 with regard to airports between the CAA and the OFT formerly Director General of Fair Trading). In paragraph 3 of that Concordat, this in part is said:
"Relevant activities exclude the non-aviation parts of the business at an airport such as car parking, car hire, cafes, restaurants, duty free shops and retail outlets."
That particular sentence would lend some support to the arguments now advanced on behalf of the Claimant; but, as it seems to me, I cannot properly have regard to it in deciding the issues of statutory interpretation that arise. The Concordat goes on in paragraph 6 in this way (under the heading of "Airports with an annual turnover of £1 million"):
"Where a person wishes to make a complaint about anti- competitive behaviour related to a relevant activity at an airport in Annex 3, this should be addressed to the CAA. Where the airport is in England, Scotland or Wales the CAA will deal with it in accordance with section 41 of the Airports Act..."
At paragraph 7 this is said:
"Where the complaint is about anti-competitive behaviour relating to an activity which is not a relevant activity it should be addressed to the OFT."
And at paragraph 8:
"Where it is unclear to the person making the complaint whether the activity concerned is 'relevant' or not he should address the complaint to the CAA which will then decide in consultation with the OFT how it should be dealt with. The complainant will be advised which body is handling the complaint."
Dealing with paragraph 8, it was not clear to me that those provisions were ever invoked in the case of the complaint which had originally been made by Airparks Services (Birmingham) Limited.
"16. In my judgment, the legal issue raised by the claimant is a seriously arguable issue. It is one which affects the claimant and others, and it is liable to affect the exercise of powers by the CAA and possibly the OFT. The decisions which it is sought to impeach by the claim form have been regarded as being of wide application and indeed it is not easy to distinguish them, as I have already indicated. The issue in question is an issue of statutory interpretation in which the facts involved are highly unlikely to be contentious, and where, in my judgment, the parties are likely to benefit from an authoritative determination of the issue, whichever way it goes -- by parties, I mean the CAA just as much as the claimant. If a decision is made that the car parking facilities are not relevant activities, there may be implications to the application of the decisions made in January 2000 and August 2002, but those implications remain to be worked out at a later date. In fact, there may be no implications at all because no prohibition has been made on any activity as a result of those decisions, and it may be that if a complaint is made to and accepted by the OFT, it will come to a decision that the 4 per cent of turnover fee is not objectionable as an abuse of a dominant position or otherwise. That is for the future.
17. In my judgment, this is a case where it would be appropriate for the question of statutory construction, which is clearly at issue between the parties, to be determined. The appropriate way to determine it is by way of a claim for declaration. While refusing permission to proceed with the present claims, I would, therefore, look positively at an amended claim form which claimed declaratory relief."
"A declaration that:
An airport operator's permission for non-exclusive use of roads to shuttle air passengers to and from a terminal and to and from an 'off airport' car park using a dropping off and collection lay-by and with the benefit of a sign or signs and a telephone position is the provision of facilities for car parking and granting of rights therefore and falls outwith 'relevant activities' in relation to an airport in sections 36 and 41 of the Airports Act 1986."
"'Airport' means the aggregate of the land, buildings and works comprised in an aerodrome within the meaning of the 1982 Act."
The 1982 Act, I should add, is defined so as to mean the Civil Aviation Act 1982.
"User" is defined in section 82:
"in relation to an airport, means-
(a) a person for whom any services or facilities falling within the definition of 'relevant activities' in section 36(1) are provided at the airport, or
(b) a person using any of the air transport services operating from the airport."
Turning then to the provisions of the Civil Aviation Act 1982, in section 105 of that Act (which is the general interpretation section) it is provided that:
"In this Act, except where the context otherwise requires-
'aerodrome' means any area of land or water designed, equipped, set apart or commonly used for affording facilities for the landing and departure of aircraft and includes any area or space, whether on the ground, on the roof of a building or elsewhere which is designed, equipped or set apart for affording facilities for the landing and departure of aircraft capable of descending or climbing vertically."
(1) First, if this narrow interpretation is right, it is difficult to see why it was thought necessary to include the actual provisions of section 36(1)(c): for that extends to "handling" of passengers or their baggage or of cargo "at all stages while on airport premises" (emphasis added).
(2) Second, if this narrow interpretation is right, section 36(2) seems otiose. For, on Mr Henderson's interpretation, facilities for car parking, refreshment of passengers and the supply of consumer goods or services at an airport (at all events, unless provided after check-in) would never have been "at the airport" in the first place. Mr Henderson frankly accepted this. He accepted that, on his interpretation, section 36(2) is in effect largely (if not entirely) otiose. But his point is that the subsection is only worded as a declaratory provision and not in terms as an exclusory provision (an observation which I think is strictly correct): and it is not surprising, he goes on to submit, that such provision was put in in order to avoid doubt. In my view, however, the more natural reading is that such provision was included just because the draftsman considered that otherwise such facilities could and would be regarded as being "at the airport".
(3) Third, Mr McManus drew my attention to various other provisions of the 1986 Act. Thus, in Part VI of 1986 Act which is headed "Miscellaneous and Supplementary", section 63 is included. This relates to airport byelaws. Section 63(1) reads as follows:
"Where an airport is either-
(a) designated for the purposes of this section by an order made by the Secretary of State, or
(b) managed by the Secretary of State,
the airport operator (whether the Secretary of State or some other person) may make byelaws for regulating the use and operation of the airport and conduct of all persons while within the airport."
Subsection (2) provides that any such byelaws may, in particular, include byelaws of the kind there set out. By subparagraph (d) one such byelaw is capable of being:
"for regulating vehicular traffic anywhere within the airport, except on roads within the airport to which the road traffic enactments apply, and in particular (with that exception) for imposing speed limits on vehicles within the airport and for restricting or regulating the parking of vehicles or their use for any purpose or any manner specified in the byelaws."
Subparagraph (e) makes provision for byelaws:
"for prohibiting waiting by hackney carriages except at standings appointed by such person as may be specified in the byelaws."
Various other provisions are made for byelaws, relating to prohibition of restriction of access to any part of the airport, for preserving order within the airport and for regulating and restricting advertising within the airport and so on.
Subparagraph (k) provides that byelaws may be made:
"for restricting the area which is to be taken as constituting the airport for the purposes of the byelaws."
Section 65(1) provides:
"Subject to the provisions of this section, the Road Traffic enactments shall apply in relation to roads which are within a designated airport but to which the public does not have access as they apply in relation to roads which the public has access."
Section 66(3) provides that various provisions of certain statutes where they:
"apply to any land within any airport in accordance with an order made under or by virtue of that section, those provisions shall have affect in relation to vehicles in a building on that land, which is used for providing facilities for the parking of vehicles as they have effect in relation to vehicles on land in the open air."
These provisions, taken both individually and in totality, simply are not consistent with the narrow interpretation offered by Mr Henderson. For example - and it is only an example - the provisions of section 63(2)(d) and (e) can make no sense at all if airport has the limited interpretation now propounded. Moreover, as Mr McManus pointed out, if "airport" has so restricted a definition, the ability of an airport operator to make byelaws under section 63 is so curtailed as in practice to be virtually nugatory. And it is, as it seems to me, no answer at all to suggest that "airport" may somehow have a different meaning in Part VI of the 1986 Act as compared to Part IV.
(1) As a matter of ordinary language it seems to me to be a strained reading. (It also seems to me to be a strained reading as a matter of impression, although I do accept - and as we are told at the highest level of authority - impression is not always a very good guide and is not to be used as a substitute for reasoning.)
(2) It seems very hard to identify any rationale for extending section 36(2) to car parking which is outside the airport.
(3) As Mr Henderson himself had pointed out, section 36(2) is, as a matter of drafting technique, drafted in declaratory form and not exclusory form. Section 36(1) relates to the provision or services or facilities "at the airport". It seems to me that, set in context, the reference in section 36(2) to car parking consistently with section 36(1) - and not least section 36 (1)(c) - necessarily relates to car parking at the airport.
"You take a car park ticket in order to obtain permission to park your car at a particular place and parking your car means, I should have thought, leaving your car in the place. If you park your car in the street you are liable to get into trouble with the police. On the other hand, you are entitled to park your car in places indicated by the police, or the appropriate authority for the purpose. Parking a car is leaving a car, and I should have thought nothing else."
"Part IV of the Bill gives the CAA powers to regulate airport charges and trading practices. That is a natural extension to the existing role of regulator of civil transport and airports for safety purposes. All airport activities will be subject to normal competition law. The CAA will exercise more specific regulatory functions over airport charges and core airport activities that are essential for the use of an airport for air transport, such as operating runways, aircraft services facilities and passenger and baggage and handling facilities".
Mr Henderson drew my attention to other passages as to what was said by Mr Ridley and Mr Spicer. Mr McManus, for his part, took me to some rather broader comments which can be extracted from the various statements made in particular by Mr Spicer.
"A declaration that the question whether the terms proposed by a letter of 19th August 2002 from Birmingham International Airport (BIA) to the Claimant may give rise to anti-competitive conduct falls within exclusive jurisdiction of the Office of Fair Trading (and outwith that of the Civil Aviation Authority) because the operation of a shuttle bus on BIA roads to and from the Claimant's car park and with the use of dedicated lay-by, signage and telephone facility do not constitute 'relevant activities' at that airport."
I am not prepared to make a declaration in so convoluted and narrative a form either.