Heathrow Hub appeals High Court judgment that rejected its legal challenge to the ANPS
Heathrow Hub appeals High Court judgment
Heathrow Hub website
On 1st May the High Court refused permission to proceed and/or refused the application of the various grounds we submitted for Judicial Review of the Secretary of State’s 2018 decision to designate the Airports National Policy Statement.
Our application for permission to appeal is based on the following grounds:
Distortion of competition – request in August 2016 by the Secretary of State to Heathrow Hub to obtain ‘a guarantee’ from Heathrow Airport Ltd that it would build the extended runway
The 1st May High Court Judgement ignores the legal position, that a distortion of competition had already arisen prior to the Secretary of State Chris Grayling’s initial decision to give preference to the North West Runway scheme announced to Parliament in October 2016. It is Heathrow Hub’s contention that the existing market structure was already distorted in favour of Heathrow Airport Ltd by, “one competitor being potentially able to affect a competitor’s offering in the market.” Furthermore, Article 106(1) of the Treaty of the Functioning of the European Union (TFEU) requires the State to guarantee equality of opportunity. Asking one competitor to guarantee or assure it would implement a competing scheme constitutes an infringement of the Article 106(1) TFEU.
The reasoning of the Secretary of State
The Court failed to take into account the unlawfulness of the Secretary of State’s reason for his decision and instead sought to substitute the reason with its own reason. The Secretary of State repeatedly referred in his evidence to the fact that he had had regard for the lack of a guarantee from Heathrow Airport Ltd as part of his decision-making process. The Court chose to ignore this, found that the guarantee was not a factor at all and then re-characterised it as regard for the “objective merits of the scheme,” as opposed to recognising the repeated admissions by the Secretary of State regarding the importance of the lack of a guarantee as a factor.
The Court deprived Heathrow Hub of its ability to rely on evidence that was central to its case by declining to make a finding on the admissibility of its evidence under Article 9 of the Bill of Rights. This error was then compounded by the fact that the court did have regard to the disputed material, but in a partial manner that prejudiced Heathrow Hub. The Secretary of State twice expressed to Parliament his consideration of the lack of a guarantee and its importance, yet the Court found that the Minister “did not mean what he said,” thereby questioning the truthfulness of what the Minister said in Parliament.
The Court erred in finding that Heathrow Hub had no legitimate expectation that the Secretary of State would not reject the Extended Runway scheme relying (solely or in part) on Heathrow Airport Ltd’s failure to give a guarantee that it would implement the Extended Runway scheme if the Secretary of State found it to be the most suitable scheme; and that the Secretary of State could resile from any such expectation. The Court did not set out the legal test of overriding public interest or acknowledge that the burden of discharging it lay with the Secretary of State. Furthermore, it did not allow Heathrow Hub to address the Court on this matter resulting in a clear error of law. The role of the Court in a judicial review is to review the exercise of discretion by the decision-maker, not to exercise the discretion itself.
Heathrow Hub’s legal advisers are DAC Beachcroft LLP, Martin Kingston QC and Satnam Choongh of No 5 Chambers and as Robert O’Donoghue QC and Emma Mockford of Brick Court Chambers.
Hillingdon and the other 4 Councils seek permission to appeal Heathrow ruling
Following the Divisional Court’s decision on 1 May 2019 to dismiss the legal challenge brought by Hillingdon Council and others, expert legal opinion has been sought by them in relation to whether there are any grounds to appeal this decision. There is no automatic right of appeal and permission to appeal is needed, in the first instance, from the court which heard the legal challenge. Therefore, an application for permission to appeal is being made to the Divisional Court on behalf of Hillingdon Council and the other local authorities involved in the legal challenge (Wandsworth, Richmond, Hammersmith & Fulham, Windsor & Maidenhead) – it will be supported by Greenpeace and the Mayor of London. The appeal is on 2 specific grounds which both have their origin in European Law. 1). Relating to the Habitats Directive, and 2). the relationship of the Airports National Policy Statement (ANPS) to the councils’ Local Plans, and the noise assessment and metric used by the government, under the SEA Directive. If the Divisional Court refuses the application, the councils can apply for permission to appeal directly to the Court of Appeal. Plan B and Friends of the Earth are also appealing, on different grounds. The councils have always known this would be a long slog …
Plan B to appeal against the Court’s judgment rejecting the Heathrow legal challenges
Plan B Earth is to Appeal against the decision of the Judges, on 1st May, to reject the legal challenges by the five councils etc, by Friends of the Earth, Plan B Earth, and Mr Paul Spurrier (as well as Heathrow Hub). Plan B Earth has published its application for permission to appeal against the judgment of Hickinbottom LJ and Holgate J . “The Appellant wishes to challenge the Secretary of State’s decision … to designate the Airports National Policy Statement (“the ANPS”) in support of the expansion of Heathrow Airport under the Planning Act 2008 (“the 2008 Act”), on the basis of his failure to give proper consideration to the climate change impacts of the proposal. Plan B mention specific errors, including that the “Court erred in law in treating the minimum target of 80% greenhouse gas emissions reduction by 2050, established by the Climate Change Act 2008 (“CCA”) as precluding Government policy which implied emissions reduction of greater than 80%: The Court proceeded on the basis that “Government policy relating to … climate change” could not differ at all (or at least could not differ materially) from the base level of the emissions target set out in the CCA. That approach is fundamentally flawed.”