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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 20 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen
on the application of
(1) London Borough of Wandsworth
(2) London Borough of Hillingdon
(3) Anne Hardy
(4) Roger Wood
(5) Norman Mead
|- and -
|Secretary of State for Transport
|- and -
|(1) London Luton Airport Limited
(2) BAA Plc
(3) Stansted Airport Limited
(4) Heathrow Airport Limited
|(1) Essex County Council
(2) Uttlesford District Council
(3) Hertfordshire County Council
(4) East Hertfordshire District Council
(5) North Hertfordshire District Council
|The Secretary of State for Transport
|(1) Stansted Airport Limited
(2) London Luton Airport Limited
(3) BAA Plc
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)
Mr Daniel Kolinsky
Mr Tom Hill (instructed by Essex County Council & others) for the Claimants
Ms Lisa Busch
Mr Richard Drabble QC (instructed by Treasury Solicitor) for the Defendant
Mr Tim Mould
Ms Carine Patry
Crown Copyright ©
The following abbreviations are used in this judgement:
"ATMs" Air Traffic Movements
"BAA" BAA Plc, formerly the British Airports Authority
"CAA" Civil Aviation Authority
"DETR" Department of Environment, Transport, & the Regions
"DTLR" Department for Transport, Local Government and the Regions
"EIA" Environmental Impact Assessment
"ES" Environmental Statement
"Essex / Herts" The Claimants in CO/ 1339/2004
"Gatwick" Gatwick Airport
"HACAN" Heathrow Association for the Control of Aircraft Noise
"Heathrow" Heathrow Airport
"LADACAN" Luton and District Association for the Control of Aircraft Noise
"LDDs" Local Development Documents
"LLAOL" London Luton Airport Operations Limited
"Luton" Luton Airport
"mppa" Million passengers per annum
"ODPM" Office of the Deputy Prime Minister
"PPGI" Planning Policy Guidance Note 1: General Policy and Principles
"RSS" Regional Spatial Strategy
"RUCATSE" Runway Capacity to Serve the South East Working Group
"SASIG" The Strategic Aviation Special Interest Group of the Local Government Association
"SEAAF" The South East Airports Appraisal Framework
"SERAS" South East and East of England Regional Air Services Study
"SSE" Stop Stansted Expansion
"Stansted" Stansted Airport
"The first Consultation Document" The Future Development of Air Transport in the United Kingdom: South East Consultation Document, July 2002
"The first / second Questionnaire" The first / second edition of the "Future Development of Air Transport in the United Kingdom: South East Questionnaire"
"The London Boroughs" The Claimants in CO/1314/2004
"The Responses Report" A Report on Responses to the Government's Consultation: South East prepared by Avia Solutions December 2003
"The second Consultation Document" The Future Development of Air Transport in the United Kingdom: South East Consultation Document 2nd Edition, February 2003
"The White Paper" The Future of Air Transport, December 2003
"The 1986 Act" The Airports Act 1986
"The 1990 Act" The Town and Country Planning Act 1990
"The 2002 Rules" The Town and Country Planning (Major Infrastructure Project Inquiries Procedure) (England) Rules 2002
"The 2004 Act" The Planning and Compulsory Purchase Act 2004
The Honourable Mr Justice Sullivan :
(1) That additional air transport capacity in South East England will be provided by the construction of a "first new runway" at Stansted "to be delivered as soon as possible (around 2011 or 2012)" (para 11.11 of the White Paper);
(2) That "the new runway would be the wide-spaced runway option presented in the Consultation Document as shown on the map" on page 117 of the White Paper (final sentence, para 11.40 of the White Paper); and
(3) That additional airport capacity may be provided at London Luton Airport by extending the existing single runway along its current alignment in accordance with the second indicative map on page 130 of the White Paper (paras 11.87 – 11.92 of the White Paper).
Before considering these submissions in detail it is necessary to explain the background to the publication of the White Paper.
Background: National Planning Policy
"National projects, and certainly major infrastructure projects, are not generally covered by policies in development plans. In the absence of national policy statements on the benefits of, or the need for, such projects, the whole burden of debate tends to fall on local inquiries. This can make for an unduly lengthy process. There is, however, no obvious relationship between length and thoroughness of process. There can be no justification, in a modern planning system, for procedures which take many years to produce a decision."
"4. It takes far too long to process major projects through to a decision. The process is lengthy, unwieldy and expensive for all concerned. Delay is costly, leads to uncertainty and brings the planning system into disrepute. The fact that major projects are relatively infrequent does not detract from the need to improve the procedures for dealing with them.
5. The purpose of the proposals in this consultation paper is to achieve significant improvements in the time taken to handle major projects, whilst continuing to ensure that adequate opportunity is given for people to have a say, to test the evidence and to reach a sound decision. It also invites views on the potential for application of the proposals for improving public inquiry procedures to a wider range of projects."
" 'Modernising Planning' considered improvements in the handling of major national projects on three broad fronts;
(a) statements of national policies;
(b) greater use of Parliamentary processes; and
(c) improving public inquiry procedures."
In the event (b) was not pursued, and is not relevant for present purposes.
"16 It is proposed that national policy statements should be published before major projects are considered within the planning system. Such statements would cover policy areas which could embrace a range of individual projects. The focus would be on statements of policy relevant to projects not likely to be subject to Parliamentary processes but their preparation in relation to projects submitted to Parliament for approval is not ruled out.
17 The purpose of such statements (which might take the form of a White Paper, for example) would be to set a clear national policy framework for the considerations of specific projects and thereby avoid unnecessary speculation and debate at subsequent planning inquiries. National policy statements will address such issues as the need for and benefits of major projects, criteria for site selection, relationships with other policies etc. The existence of such statements will help the Inspector ensure that time is not wasted at inquiry going over issues which have been settled."
"1 Processing major projects through the planning system has become increasingly difficult. Current procedures do not adequately address the tension between the natural justice argument that the views of all concerned should be fully aired at an inquiry, and the argument that such an all-embracing process is slow and costly and damages the economy.
2 Major projects, excepting those involving minerals, or waste, are not generally the subject of specific proposals in development plans, even though there may be a number of policies relating to them. There are a number of reasons for this; for instance, it may be difficult to forecast the need for major projects within the timescale of a development plan or in terms of their limited geographical coverage. Thus major projects have not always been covered by development plans for reasons of timing. It is also argued increasingly that the planning system should be more responsive to high priority national needs. In the absence of specific national policy statements, therefore, there tends to be great pressure at public local inquiries to try to debate policy issues such as need. Such debates tend to make inquiries longer and longer.
3 In the last 15 years there have been less than 10 projects which were national in scale and where the inquiry has lasted more than three months. Examples of such projects which have lasted more than 180 sitting days are:
1981 – 83 Stansted (London Airport) Inquiry - 258
1983 – 85 Sizewell B Nuclear Power Station - 340
1988 – 89 Hinckley Point Nuclear Power Station – 182
1995 – 99 Heathrow Airport Terminal 5 - 524"
"Handling of Major Projects
230. It takes far too long to process major projects through to a decision. The process is lengthy, unwieldy and expensive for all concerned. That is why the Government published a consultation paper in 1999 on streamlining the processing of major projects through the planning system in England. This was part of the modernising planning agenda. It focused on projects of national significance, such as new or expanded airports. The purpose was to cut unnecessary and costly delays in decision-making whilst continuing to ensure that people have an adequate opportunity to contribute their views.
231. One of the proposals in the consultation paper was that statements of national policy should be published before major projects were considered in the planning system. These would set a clear national policy framework for the consideration of specific projects and thereby avoid unnecessary speculation and debate at subsequent planning inquiries.
232. The air transport white paper could provide such a national policy statement for airport development. Consequently, subsequent revisions of RPG, or national planning policy guidelines in Scotland, and structure and unitary development plans in the relevant regions would need to reflect this."
The purpose of the White Paper is explained in Chapter 1, as follows:
"1.1 This White Paper sets out a strategic framework for the development of airport capacity in the United Kingdom over the next 30 years, against the background of wider developments in air transport.
1.4 It is for airport owners and operators to bring forward such proposals, which will need to be considered through the planning system in the normal way. This White Paper does not itself authorise (or preclude) any particular development, nor does it preclude any particular development, [sic] but sets out policies which will inform and guide the consideration of specific planning applications.
1.6 The Government therefore believes that a national strategy framework for the future development of airport capacity, looking forward over a thirty-year time horizon, is needed in order to:
- Provide a clear policy framework against which airport operators, airlines, regional bodies and local authorities can plan ahead. The lack of such a framework has been a serious hindrance to the efficient development of airports in this country, resulting in over-lengthy planning inquiries and unnecessary delay;
- Give a greater certainty wherever possible to those living close to airports and their flight paths. Again, the lack of a clear long-term strategy and the slow progress of decision-making has helped create unnecessary blight, uncertainty and distress for many people;
- Take a view of the long-term demand for air travel and airport capacity, both for the country as a whole and across regions, and of the best long-term strategy to respond to that demand, rather than addressing each separate proposal in a piecemeal and uncoordinated fashion;
- Set out a strategic and sustainable approach to balancing the economic benefits of air development, the social benefits of easier and more affordable air travel, and the environmental impacts that air travel generates; and
"2.24 In summary despite the laudable efforts of the Department for Transport there are severe weaknesses in the SERAS consultation. Those highlighted above relate particularly to Stansted and Luton but many will also apply to the other sites, including Gatwick.
2.25 The Government cannot determine which site to develop to any level based on flawed, or at least seriously questionable, information on that site and the alternatives. To do so would create insoluble problems for the planning system when at a Public Inquiry into the subsequent planning application the weaknesses would be exposed but the original decision would be irrevocable.
2.26 The development of the White Paper must follow due process if it is to be acceptable to the wider community. It is this County's view that the consultation process has not been adequate."
"whilst key components of the overall decision process, sifts 0 and 1 are effectively precursors to the main appraisal study which encompasses sifts 2 and 3. The approach to sifting therefore differs at the early stages."
"the progression towards the small number of packages of schemes from which Ministers would make their choice has to withstand scrutiny. The performance of each package in terms of indicators needs to be exposed and clearly presented. Ministers following public consultation will take final decisions based on the factual appraisal and views expressed by interested parties. Response to the consultation will be particularly relevant in helping Ministers come to a view on what weight they should attach to conflicting considerations and how to balance those. The weight Ministers put on each indicator will be evident when their final choice is made."
"the framework provides information about options, not the answers. A degree of judgement and consultation will be required in making decisions based on the framework. Weights used in assessing trade-offs between objectives should not be predetermined. The framework does not make judgements on the relative value to be put forward on different objectives and does not provide a mechanistic way of reaching decisions."
The first Consultation Document
The second Consultation Document
"We have taken the opportunity of a second edition to correct some small typographical errors. Where it has become evident that clarification would be helpful we have expanded the earlier text. Finally, where things said in the July 2002 text have been overtaken by events since then, we have mentioned this in a footnote".
"This is an open consultation. No decisions have been taken. Anyone in the country can express their views on the options put forward in the Consultation Documents, but it is also open to anyone to submit alternative ideas; several new proposals have already been put forward. We will consider all consultation responses".
Save where it is necessary to distinguish between the two editions I will simply refer to the "Consultation Document".
"This Chapter summarises the Government's objectives for its consultation on new airport capacity for the next 30 years. The Government welcomes your views on three key questions: how much demand for air travel should be met, where to locate any new airport capacity, and how to manage the environmental impacts of any airport growth. The chapter goes on to outline how the document has been structured to help address these key issues. The questions we would like consultees to answer are set out in Annex A."
Under the heading 'A Sustainable Airports Policy' paragraphs 1.1 – 1.5 said:
"1.1 The Government is committed to ensuring that the long-term development of aviation is sustainable. This will mean striking a balance between the social and economic benefits of air travel and the environmental effects of any development. The Government believes that, in principle, its policy for airports in the South East should aim both to maximise the significant social and economic benefits that growth in aviation would bring whilst trying to minimise the environmental impacts. However, the Government wants to consider the responses to this consultation before coming to a view on how to strike the right balance.
1.2 The purpose of this consultation is to set out our appraisal of both the benefits and the disbenefits of the options for additional airport capacity, and to seek views on those options in the light of this information. Your responses will help the Government decide how much weight to give to the various factors that will determine the final decision on airport capacity.
1.3 In the South East consultation, we are seeking your views on the following three questions:
- should new airport capacity be provided in the South East over the next 30 years and, if so, how much? A particular issue is whether there is a case for having at least one major hub airport.
- where should any additional runway capacity be provided? A particular issue is whether or not Heathrow should be developed further.
- what controls, mitigation measures and compensation should be put in place to limit and manage the adverse impacts of any additional airport development on people and on the natural and built environment?
1.4 We have not taken any decisions on the solutions to these issues. This consultation invites you to comment on the arguments for and against providing different amounts of new airport capacity at different locations. Your comments will be used to help the Government take decisions in the White Paper.
1.5 The Government wishes to set out in the White Paper its policy about where it would be willing to contemplate new airport / runway provision over the next 30 years. Implementation will be a matter for private sector investment and will remain subject to the land use planning system."
The twenty-one questions in Annex A were grouped in three sections: how much capacity should be provided; where to provide any new airport capacity; and managing the impacts of airport growth.
"The approach to airport appraisal follows that in the then DTLR's Guidance on Methodology for Multi-Modal Studies which sets out the Government's five objectives for transport investment – safety, economy, environment, accessibility and integration. A further consideration is commercial viability, which is a hurdle that must be passed for airport developments on both existing and new sites. A policy that relied on options that could not be funded by the private sector for the bulk of a major airport investment would not have been a useful outcome.
The appraisal framework enables decisions to be made on the basis of trade-offs between indicators for each of these considerations. The framework does not make judgements on the relative value to be put on different considerations and does not provide a mechanistic way of reaching decisions. The weight Ministers put on each consideration will be made clear in the decisions set out in the air transport White Paper." (p163 – 164)
"In preparing this White Paper the Government undertook an extensive consultation exercise involving people and organisations with an interest around the country. The results of that consultation have closely informed our conclusions".
The consultation process was summarised in a text box on page 18 of the White Paper.
"A clear statement of policy in the White Paper will be an essential component of the subsequent authorisation process, whatever form that may take under revised planning procedures."
The Statutory Framework
"shall have regard to the provisions of the development plan so far as material to the application and to any other material considerations".
"Where, in making any determination under the Planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise"
"(a) any regional or strategic planning guidance given by the Secretary of State to assist them in the preparation of the plan; and
(b) current national policies" (see s31(6) of the 1990 Act).
The Local Plan had to be "in general conformity" with the structure plan (s 36(4) of the 1990 Act).
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise".
"3. In summary the package comprised:
- Up to date statements of Government policy before major infrastructure projects are considered in the planning system to help reduce inquiry time spent on debating the policy
- An improved regional framework which will assist consideration of individual projects, for example through the revised arrangements for regional planning guidance…
- Improved inquiry procedures for major infrastructure projects;…
4. The purpose of the new inquiry procedures is to achieve significant improvements in the time taken to handle major infrastructure projects by streamlining the process and reducing unnecessary delays whilst continuing to ensure adequate opportunity is given for people to have a say, to test the evidence and to make a sound decision".
"It is important to recognise that statements of policy (whether at national or regional levels) cannot pre-empt a decision on an application for planning permission. The purpose of the Government's reforms to the system has been to provide a clear policy framework within which decisions can be taken as expeditiously as possible. Every future decision maker's consideration of matters raised by the White Paper will, of course, have to be on a basis which is compatible with the statutory framework.
The Government's view is that where need is established by a national policy statement, a planning inspector at a planning inquiry should not have to consider whether a need for the development exists but should consider whether the need identified is outweighed by other relevant factors. The establishment of need for a type of development in a policy statement does not mean that an inspector, and ultimately the decision-maker, will be precluded from considering the need for the proposed development, but this will be done in the context of what is said about need in the national policy statement. Persons interested in the application will have the opportunity to make representations as part of the inquiry process. It will be up to those that are opposed to a development to present their arguments against a specific development and it is right that they should have the opportunity to do so."
" "Policy" as descriptive of departmental decisions to pursue a particular course of conduct is a protean word and much confusion in the instant case has, in my view, been caused by a failure to define the sense in which it can properly be used to describe a topic which is unsuitable to be the subject of an investigation as to its merits at an inquiry at which only persons with local interests affected by the scheme are entitled to be represented. A decision to construct a nationwide network of motorways is clearly one of government policy in the widest sense of the term. Any proposal to alter it is appropriate to be the subject of debate in Parliament, not of separate investigations in each of scores of local inquiries before individual inspectors up and down the country upon whatever material happens to be presented to them at the particular inquiry over which they preside. So much the respondents readily concede.
At the other extreme the selection of the exact line to be followed through a particular locality by a motorway designed to carry traffic between the destinations that it is intended to serve would not be described as involving government policy in the ordinary sense of that term. It affects particular local interests only and normally does not affect the interests of any wider section of the public, unless a suggested variation of the line would involve exorbitant expenditure of money raised by taxation. It is an appropriate subject for full investigation at a local inquiry and is one on which the inspector by whom the investigation is to be conducted can form a judgment on which to base a recommendation which deserves to carry weight with the minister in reaching a final decision as to the line the motorway should follow.
Between the black and white of these two extremes, however, there is what my noble and learned friend, Lord Lane, in the course of the hearing described as a "grey area." "
Against this background I turn to the grounds on which the Claimants challenged the policies in Chapter 11 of the White Paper.
"the South East consultation document recognised the central role that Heathrow has played in the United Kingdom's aviation industry for several decades. For many people around the world Heathrow is London airport, a long established and widely recognised global brand".
Its history of seemingly inexorable, incremental growth was summarised in Chapter Two of the Report of Mr Roy Vandermeer QC, the Inspector appointed on 29th March 1994 to hold an inquiry into proposals for a fifth terminal at the airport. Mr Vandermeer reported to the Secretary of State for the Environment, Transport and the Regions on 21st November 2000. It is clear that the difficulties he faced in the absence of any clear statement of Government policy relating to airport development in the South East were a powerful spur to the preparation of the White Paper.
"I regard the clear statement of Government policy in the White Paper that there will not be a terminal five as being as categorical a statement of Government policy as one is ever likely to come across. But I also take the view that no Government can ever say that it, or some successive Government, will not adopt a different policy at some unknown period in the future. Therefore my tentative approach is that this is a commitment that is put so categorically that there would have to be very strong, compelling reasons for any later Government to adopt a different policy. But one must have at the back of one's mind that there is such possibility, however remote."
Planning permission was granted for the fourth terminal on the 17th December 1979. On the same day in the House of Commons the Secretary of State for Trade, when announcing that decision stated unequivocally that a fifth terminal should not be provided.
"In 2000 Heathrow handled around 64 million passengers and 460,000 ATMs."
Mr Vandermeer was satisfied that the history of developments at Heathrow explained in part the extent of the concern of those who opposed the proposals for the fifth terminal. Having noted that "there was considerable mistrust of Government", he added that:
"it is important for the foreseeable future there a clear policy and that the public should have confidence in it. I am comforted to know that subsequent to the receipt and consideration of my report, the Government will be producing an airports' policy for the next 30 years".
"several important conditions including an annual limit of 480,000 on the number of flights at Heathrow from the opening of the new terminal and a restriction of the area enclosed by the 57 decibel noise contour to 145 square kilometres as from 2016".
"11.6 Our first priority is to make the best possible use of the existing runways at the major South East airports.
11.7 Making best use of existing runways in the South East will provide some much needed additional capacity. But on its own it would fall a long way short of providing a lasting solution. Facilitating the growth of airports in other regions will also reduce the pressure on the major South East airports, but this will not substantially reduce the long-term pressure on London airports.
11.8 Having considered all the information before us, we believe, on balance, that two new runways will be needed in the South East over the next three decades. It is clear that a first new runway is needed as soon as possible, although it would take up to a decade to put in place. Beyond that there are large uncertainties, which increase the further ahead we look, for the reasons set out in Chapter 2. But we believe that work has to start now on planning for a second new runway to be built probably around 2015 – 2020.
11.9 Each of the potential locations for additional runways identified in our consultation has significant environmental, practical and other constraints. We also recognise that, wherever we identify a need for another runway, this will cause concern, even if it might be fifteen to twenty years or more before such a runway is built.
11.10 Taking all these factors into account, including the longer-term uncertainties, we propose to take a balanced and measured approach, based on the principles set out in Chapter 2 and Chapter 3. We therefore intend to identify now where we believe the first new runway should be located, and to start to plan for a second new runway, including safeguarding the necessary land.
11.11 In summary, our principal conclusions about new runway capacity in the South East are:
(1) we support making best use of the existing runway at Stansted and development to its full use of a single runway at Luton;
(2) we support the provision of two new runways in the South East in the thirty year period to 2030;
(3) we do not believe that there is a strong case for attempting to create a second hub airport in the South East;
(4) we support development as soon as possible (we expect around 2011 / 2012) of a wide-spaced second runway at Stansted, with strict environmental controls, as the first new runway to be built in the South East;
(5) we support development at Heathrow provided that stringent environmental limits can be met, including a new runway as soon as possible after the new runway at Stansted (our assessment is that there is a substantially better chance that the limits could be met in the 2015 – 2020 period);
(6) we propose an urgent programme of work and consultation to find solutions to the key environmental issues at Heathrow and to consider how we can make best use of the existing airport;
(7) we have concluded that we should not take action to overturn the 1979 planning agreement that prevented construction of a second runway at Gatwick before 2019;
(8) we believe that there is a strong case on its merits for a wide-spaced second runway at Gatwick after 2019 and that land should be safeguarded for such a runway, in case it becomes clear in due course that the condition that we wish to attach to our support for the construction of a third Heathrow runway cannot be met;
(9) the policies set out above provide for the two new runways which are needed; we do not, therefore, support development of two or three additional runways at Stansted, or development of two new runways at Gatwick;
(10) we do not support the option of a new airport at Cliffe, or any of the proposals for alternative locations put forward during the consultation
(11) we support, in principle, development of smaller airports in the South East to meet local demand subject to relevant environmental considerations; and
(12) we do not support development of Alconbury for passenger or freight services, but we recognise the potential for relocation there of aircraft maintenance operations from Cambridge Airport."
[I have numbered the bullet points in paragraph 11.11 for ease of reference]
"The Government believes there is a strong case for seeking to secure the large economic benefits achievable through the addition of a third runway at Heathrow. At the same time, however, we recognise that these strong economic arguments must be weighed against the serious environmental disadvantages of Heathrow."
The "serious environmental disadvantages" were then discussed in paragraphs 11.52 – 11.60. Paragraph 11.54 noted that the most serious issue confronting the expansion of Heathrow was compliance with the mandatory EU limits for air quality that will apply from 2010. Paragraph 11.57 stated that the Government's overall assessment was that within the 2015 – 2020 timescale there would be a substantially better prospect of avoiding excedences of the mandatory air quality limit values.
"11.61 The Government recognises the economic strength of Heathrow and the direct and wider benefits to the national economy that will be lost if additional capacity cannot be provided there for many years, or at all. At the same time, on the basis of the evidence available, we cannot be confident that air quality limits at Heathrow with the addition of a third runway will be met, even with aggressive mitigation measures.
11.62 The Government supports a third runway, which would bring substantial benefits for this country, at Heathrow, once we can be confident that the key condition relating to compliance with air quality limits can be met. We judge that there is a substantially better prospect of achieving this with a third runway and terminal capacity built in the 2015 – 2020 period, as long as we take action without delay to tackle the NO2 problem. The Government's support would also be conditional on measures to prevent deterioration of the noise climate and improve public transport access as set out above.
11.63 We will therefore institute immediately, with the airport operator and relevant bodies and agencies, a programme of action to consider how these conditions can be met in such a way as to make the most of Heathrow's two existing runways and to enable the addition of a third runway as soon as practicable after a new runway at Stansted.
11.64 Compliance with air quality limits for NO2 will require a concerted effort by the airport operator and the aviation industry to identify ways of reducing emissions from aircraft, from other airport activity, and from airport-related road traffic. They will need to take account of the scope to increase the use of public transport and manage the demand for road access. The Government will examine the contribution from vehicular traffic on the surrounding road network.
11.65 The airport operator argued in its consultation response that the full potential of a third runway could not be realised without a sixth terminal to the north of the A4. They suggested four possible options for new facilities. In all cases more land would be needed than allowed for in the consultation option, which assumed that terminal capacity would be provided within the airport boundary. In principle, we recognise the force of these arguments and suggest that the operator should carry out further work on proposals for terminal capacity an appraisal of the impacts, on the basis of which a further consultation would be required.
11.66 Our current assessment is that a new runway at Heathrow could not come into operation before some time in the period 2015 – 2020. It is important, therefore, to consider the scope for greater utilisation of the two existing runways. For example, mixed mode operation in peak hours might be introduced, while retaining runway alternation for the rest of the time. The impacts and benefits of any such proposal would have to be studied in detail, and there would need to be a full public consultation. We expect the airport operator, working with the Civil Aviation Authority, National Air Traffic Services and the Government, to develop proposals to form the basis of such a consultation. The proposals will need to take account of air quality and noise implications, including review of existing procedures such as westerly preference and the 'Cranford Agreement', as previously indicated in the decision on the Heathrow Fifth Terminal.
11.67 We look to the airport operator to take steps to safeguard the land needed for the option for a third runway at Heathrow. We welcome the amendments suggested by the operator to the layout for a third runway that would reduce impacts on Harmondsworth. The map below reproduces that shown in the consultation document, but has been revised to take account of those proposals by the airport operator."
"The publication of the White Paper in December 2003 revealed that key parameters on which the consultation exercise had proceeded no longer applied and that instead a strategy was being promulgated to respond to a fundamentally new landscape. The solutions arrived at in the White Paper had, in a number of crucial respects, not been foreshadowed in the consultation exercise. By the time of the publication of the White Paper the responses of those who answered the questions asked of consultees were no longer addressing the material issues which were now driving the decision-making process."
The London Boroughs contend that because the 'landscape' fundamentally changed between the second Consultation Document and the White Paper, fairness required there to be a further round of consultation. There is no dispute between the London Boroughs and the Defendant as to the relevant legal principles. Having embarked on a substantial non-statutory consultation process, the Defendant accepts the proposition that the fairness of that process is amenable to judicial review. The Defendant further accepts that if there had been a fundamental change in the "landscape" and therefore a fundamental difference between that which the Defendant consulted upon in the Second Consultation Document and the conclusions and policies set out in Chapter 11 of the White Paper fairness would have required the Defendant to carry out further public consultation before resolving upon those conclusions and policies: see R (on the application of Carton and Larad) v. Coventry County Council  4 CCLR 41 per Sir Richard Tucker (sitting as a Deputy High Court Judge) at 44E.
"clearly if all the fundamental aspects of the decision under challenge had not been consulted on but ought to have been, that would indicate a breach of the duty to consult. While at the other extreme, trivial changes do not require further consideration. In approaching this issue, it is necessary to bear to mind not only the strong obligation of the Defendants to consult, but also the dangers and consequences of too readily requiring reconsultation, as those dangers also flow from the underlying concept of fairness, which underpins the duty to consult."
"the concept of fairness should determine whether there is a need to re-consult if the decision-maker wishes to accept a fresh proposal, but the Court should not be too liberal in the use of its power of judicial review to compel further consultation on any change. In determining whether there should be further reconsultation a proper balance has to be struck between the strong obligation to consult on the part of the health authority and the need for decisions to be taken that affect the running of the health service. This means that there should only be reconsultation if there is a fundamental difference between the proposal consulted upon and those which the consulting party subsequently wishes to adopt."
The Code of Practice on Written Consultation published by the Cabinet Office in November 2000 is to the same effect. Paragraph 6 on page 17 states:
"If significant new options emerge from consultation, it may be right to consult again on them (though a shorter consultation period may be justified…)"
(1) The hub aspect;
(2) The radical change;
(3) The seeding assumptions;
(4) The economic regulatory context; and
(5) Heathrow's "maximum use" was presumed to exclude mixed mode and off-site terminals.
(1) The Hub Aspect
"4.1 There are two fundamental issues that the Government wishes to address to help it to decide whether new capacity should be provided in the South East and, if so, where:
- Does the UK need one or more major hub airports in the South East?
- Should we develop Heathrow further?
4.2 The two questions are in fact closely linked. We need to consider what the benefits are to the UK of having a strong hub airport and, if maintaining a hub airport is a desirable objective of our aviation policy, whether the best way to achieve it is to maintain Heathrow's role as our premier airport. If Heathrow is not to be developed then we should consider other possible alternatives."
" 4.19 If the impacts at Heathrow meant that further development could not be justified, possible alternatives would be to expand another existing airport sufficiently to allow for hub operation or to construct a new, purpose-built airport at Cliffe. Gatwick is already the second largest airport in the UK, it serves a large catchment area and with the addition of two new runways it could play a major role as a hub…"
"One of the major challenges facing the creation of a major hub at either Cliffe, Gatwick or Stansted would be attracting sufficient traffic to make the development financially viable. This issue would be particularly serious in the case of Cliffe, because of the high construction costs, and the fact that a large proportion of the costs would need to be committed up-front, before the airport could start operating…"
"A South East hub airport
11.12 We sought views from consultees about the value to the UK of having one or more major hub airports in the South East. This is an important prior consideration for any decision about the long-term provision of airport capacity.
11.13 Large airports are able to support a wider range of destinations and greater frequency of services than could be supported by local demand alone. Major airports attract passengers connecting from one flight to another and, because of this concentration, airlines can operate routes and frequencies that would not otherwise be viable. This is well illustrated at Heathrow, which has the highest number of international transfer passengers of any airport in the world.
11.14 At the same time, our assessment suggests that the greatest economic benefits are obtained by providing capacity in locations which are convenient for as much as possible of the total demand. That is better achieved by a more dispersed pattern of capacity than by concentrating all additional capacity at one location.
11.15 There is evidence to suggest that a combination of liberalised air markets, changing aircraft design and growing demand will increasingly mean that airlines will want, and be able, to fly point-to-point to a greater number of destinations. Demand in the South East will be strong enough to support more point-to-point services without the reliance on connecting traffic. However, some long-haul services will continue to be reliant on feed from connecting passengers. This suggests that long-haul airlines will continue to be attracted to major airports.
11.16 A South East hub can deliver substantial benefits to the whole of the UK, and most believe that Heathrow is the only candidate for that role. There is very little support for the concept of a second or alternative hub, which most felt was impractical and would carry high risks. Indeed, many airlines believe that an alternative South East hub would only work if Heathrow were to close.
11.17 We recognise the immense value to the UK of Heathrow's status as an international hub airport and we want to see that continue. However, we do not believe that there is a strong case for attempting to create a second hub airport in the South East, whether or not additional capacity is created at Heathrow."
(2) The Radical Change
"11.1 Building a new airport on the Hoo Peninsula in North Kent would represent a radical change to airport provision in the South East of England. It offers the prospect of a purpose-built hub airport providing a large amount of new runway capacity, but at the same time minimising a number of negative impacts on people – although there would be major environmental impacts.
11.2 Cliffe was identified following a detailed study of potential sites for a new airport. The main reasons for this were:
- sufficient land available for a major new airport;
- potentially good surface transport links with London and other parts of the South East and the UK;
- relatively few people would be displaced by the airport's construction for the amount of new capacity provided;
- relatively low numbers of people would be affected by aircraft noise;
- the potential for 24-hour operation to meet the needs of air freight; and
- development of an airport in this location would support regeneration policies in the Thames Gateway.
11.3 The success of a new airport would depend crucially on its ability to attract airlines. Airport development costs are estimated at just over £9 billion in today's prices for a two runway airport and around £11.5 billion for a four runway airport. In order to remunerate this expenditure, the airport would need to attract, quickly, a large number of air services."
"A new airport at Cliffe would impact on several nationally and internationally designated areas, notably the Thames Estuary and Marshes Special Protection Area (SPA) and the Northwood Hill Site of Special Scientific Interest (SSSI) / National Nature Reserve."
"The presence of large bird populations raises the risk of birds colliding with aircraft which is an important safety issue for any airport. A preliminary assessment was made of this risk at Cliffe. The consultants noted the potentially significant hazards of the Cliffe location and identified some options for mitigating the risks in the design and layout of the airport and in measures in the surrounding area. They acknowledge that further research would be needed to assess fully both the risk and the best mitigating measures. The Department will be commissioning work during the consultation period. More information about impacts of the Cliffe proposals on ecology can be found in the report mentioned in the previous paragraph."
"In conclusion, the study found that the environment around the Cliffe airport option contained substantial numbers of birds hazardous to aircraft. Without a comprehensive and aggressive bird management programme in place, incorporating careful and considered airport design, appropriate habitat management and active bird control, an airport could not operate safely in this location. Even with such world class management and mitigation measures in place, as identified in this report, it is not considered possible to reduce the risk to a level similar to that experienced at other UK airports."
"11.18 Early in the process leading up to this White Paper, the Government was urged by a range of interested parties to consider an option for a new airport as an alternative to incremental development of existing airports. Many believed that a new, purpose-built airport could provide the best long-term solution to the need for more airport capacity in the South East.
11.19 A detailed site search considered some 400 possible locations in the South East and other parts of the country, including some offshore. The site near Cliffe, on the Hoo Peninsula in Kent, emerged from this selection process as the leading candidate. In particular it offered enough land for large-scale development, the potential for good transport connections to key markets in and around London, support for regional planning objectives in the Thames Gateway, and the potential for 24-hour operation (of particular value to freight operators), with relatively low numbers of people affected by noise.
11.20 The Government recognised in the consultation document that the potential benefits of developing a major new airport at Cliffe would need to be considered in the context of its significant impacts on important wildlife habitats. Moreover, the internationally important status of some of the habitats under European law mean that any potentially adverse effect would require the Government to demonstrate that it has considered all reasonable alternatives. In the light of the consultation, the Government is satisfied that there would be reasonable alternatives to Cliffe.
11.21 The Government has also taken careful note of the conclusions of the report by the Central Science Laboratory and British Trust for Ornithology [The Bird Strike Report], who were commissioned to address in more detail concerns that had been raised in the consultation paper about the potential safety risk from bird-strikes at this location and about the feasibility of effective mitigations.
11.22 Our analysis shows that in the right conditions, an airport at Cliffe could attract a substantial number of passengers and generate large economic benefits. However, it also showed that, because of high capital costs, the net benefits of Cliffe were lower than for any of the combinations of additional capacity at existing airports involving more than one new runway, including the four-runway option at Stansted. The high up-front construction costs also presented a risk that the commercial viability of the project would be threatened if demand proved to be less strong than forecast, or if airlines and passengers simply did not use the airport.
11.23 Taking all factors into consideration, the Government does not support the option of a new airport at Cliffe."
"In the second edition of the consultation document and elsewhere the Government made clear it was open to, and would consider any serious and worked-up alternative ideas. The following proposals were considered".
"it was evident from responses to the consultation that development of a major new airport – especially as an alternative or a second South East hub – would very probably be viable only with substantial financial support of some kind from the Government."
"A further consideration is commercial viability, which is a hurdle that must be passed for airport developments on both existing and new sites. A policy that relied on options that could not be funded by the private sector for the bulk of a major airport investment would not have been a useful outcome." (p.163)
"The great majority of airports in the UK are operated on a commercial basis whether privately or publicly owned. At these airports we will look to the operators to determine the exact form of development needed and to bring forward proposals for investment in new capacity, in a timely manner, to be funded commercially."
"11.109 A number of consultees called on Government to consider new airport options in the Thames Estuary or similar locations, on the basis that the impacts would not be as great as development of existing airports. The Government has considered the proposals put forward during the consultation, in addition to the two estuarine sites for large new airports that were considered at various stages of the SERAS study: Cliffe and The Cant (an island site in the Thames Estuary). Although, the Cliffe option was taken forward for further detailed study, The Cant option was dropped at the preliminary stage of the study.
11.110 Our analysis identified a number of issues of concern common to all proposals for offshore or coastal airports, noting that:
- construction costs would be significantly higher than for onshore sites and less certain. The additional costs would be incurred largely in the early phases of development before any revenues are generated;
- construction might be several years longer for an offshore site;
- costs of related transport infrastructure could be very high. The further the distance from the key London markets, the more heavily an airport would depend on dedicated, high-speed rail access and sufficient terminal capacity in Central London. A new railway would be expensive and difficult to provide. There is little spare capacity at the London terminals. Substantial addition road infrastructure would also be required;
- some impacts (such as noise), would be reduced but damage to sensitive habitats is often more likely, and some new environmental impacts would need to be considered, such as marine ecology, and effects on tidal flow. Land-take at the site would be less than for onshore locations, though land might still be required for associated facilities and for new road and rail links. Risks posed by bird strike would expected to be greater at estuarine sites, especially those on or close to the shoreline;
- forecasting suggests that the commercial viability if a new estuarine airport would be likely to depend on government intervention to try to ensure early take up of new capacity by passengers and airlines. Although offshore airports have been built elsewhere in other parts of the world, none of them is part of a multi-airport system as would be the case in the South East. The level of intervention required to ensure success would almost certainly entail significant costs to the public sector.
11.111 Additionally, Goodwin Sands would deliver poor economic benefits in relation to its high costs. The airport would be a long way from key centres of demand.
11.112 Insufficient information was supplied by the promoters of the Marinair proposal to enable a meaningful comparative appraisal of its potential costs and benefits. However, from the limited information provided it would appear likely that the Marinair project would be prohibitively expensive, both in terms of airport construction and road and rail links.
11.113 The Sheppey proposal would generate significantly lower net economic benefits than a combination of one new runway at each of Stansted and Heathrow. The promoters' heavy reliance on high speed rail access with limited road connections was considered to be highly optimistic. There are also uncertainties as to whether the site proposed is adequate to handle the assumed level of traffic.
11.114 Although the Thames Reach promoters managed to mitigate some of the drawbacks of Cliffe, a substantial part of the airport site would impact, as did Cliffe, on areas of very high ecological value that are protected under the EC Habitats Directive, and we have doubts whether the passenger numbers envisaged could be handled within the land-take given the likely demand for air travel over the day. We were concerned that the surface access proposals were not robust and over-dependent on rail. In the light of the appraisal of the Cliffe option, there remain significant concerns about the risk of bird strike and the efficacy of the measures proposed to address it. The capital costs assumed by the promoters are much less than those for Cliffe, including for surface access…
11.116 In the light of these particular concerns, the evidence currently available to the Government, and all other relevant factors, the Government does not consider that any of the above proposals can be considered to offer a solution that is both superior to the preferred options for development of existing major airports, as previously described, and clearly viable within the timescale concerned."
"It is vital to bear in mind that the commercial viability of Stansted is much more likely than that of Thames Reach, or Cliffe…using DfT assumptions, the 'standalone' airport charge at Cliffe, at £13.70 per passenger would be almost twice that for an additional runway at Stansted. At estuarial sites, capital costs per mppa are likely to be much higher…"
(3) The Seeding Assumptions
"For Cliffe (in particular) or a large Stansted to be funded by the private sector, the new airport capacity would have to be substantially used from the time the new capacity became available. The most likely way of achieving that would be if a major airline alliance could be attracted to set up a hub operation at the airport; for this reason, routes in our modelling have been 'seeded' at Cliffe and at a large Stansted (see paragraphs 9.10 and 11.6, the respective airport chapters). Such high use of capacity at Cliffe or at a large Stansted would also, of course, be necessary if the overall policy objective was to create a new hub, either to replace Heathrow as the UK's main hub or to become a second hub alongside Heathrow."
"For Stansted to be viable as a hub airport, a significant amount of traffic would need to move there at the outset to create a network of services and frequencies. To replicate this we have in our forecasting 'seeded' the airport. Seeding effectively means that an operator or operators move a major tranche of services to an airport as a new runway opens. Long-haul scheduled services are seeded – to the extent of 40 per cent at Heathrow's 1998 scheduled services in these markets – from the opening of a new runway in 2011. Otherwise it would take a long time for Stansted to build up significant capability in these markets."
"For Cliffe to be viable as a hub airport, a significant proportion of traffic would need to move there at the outset to create a network of services and frequencies. To replicate this in our forecasting we have 'seeded' the airport. Seeding effectively means that an operator or operators move a major tranche of services to an airport as a new runway or airport opens. The seeded service frequencies at Cliffe amount to 40 per cent of Heathrow's 1998 scheduled services, 23 per cent of Gatwick's 1998 charter services and 11 per cent of Stansted's 2000 low cost services."
"23 The most recent version of the DfT's air passenger forecasting model takes more account of changes in the aviation market since 2000. It remains controlled to the national forecast inputs in terms of total mid-point throughputs for 2020 and 2030 (400mppa and 500mppa respectively) and in the balance between UK / foreign residents, business / leisure passengers, international / domestic sectors, and between the South East and the other regions of the UK.
24 The principal features of the most recent version of the model are:
- a total of 103mppa of NFCs in 2030 in the unconstrained case;
- explicit modelling of the implementation of Government policy that aviation meets its external costs. However, this effect is offset by the judgement that airlines will be more successful in reducing their costs; through the stimulus of NFCs, the competitive response of scheduled airlines, and liberalisation of long-haul markets."
"6.43 With older versions of the DfT passenger forecasting model there would have been concern about the fundability of a Stansted runway as the first additional runway in the South East if a subsequent Heathrow runway had NOT been ruled out. This concern centred on the 'seeding' of long-haul services, an assumption that was made at the time a new runway opened at Stansted with the prospect of a Heathrow runway it would have been less likely that a significant amount of long-haul capacity would have willingly started up operations at Stansted.
6.44 'Seeding' at the time of the new runway is no longer required to get long-haul to Stansted. A key point in the forecasts is that Heathrow will strengthen further as a business airport while Stansted will continue mainly as a leisure airport. Recovery of long-term trend growth would lead to a major boost in foreign leisure long-haul markets. Like the larger airports in the regions, Stansted should serve some second tier leisure oriented long-haul. Heathrow and Stansted would not have completely differentiated markets, but funders could well see the commercial case for a leisure oriented additional runway at Stansted and a business oriented and premium runway at Heathrow."
"These were reported at over £5 billion. It is likely to be a significant underestimate because that calculation assumed some intervention in the market to direct airlines to Stansted ['seeding'] so as to build up a hub there. However, it seems likely that natural traffic growth at Stansted will be strong enough in line with market demand without such measures and this will provide higher economic benefits of the order of 9 billion".
(4) The Economic Regulatory Context
"In recent years, the great majority of airport projects have been undertaken on a fully commercial basis, without public sector subsidy. This applies both to airports which are privately owned and those which are owned by local authorities. The Government expects this pattern to continue and does not expect to commit public funds"
The regulatory regime was discussed in paragraphs 15.4 and 15.5, and in a footnote the CAA's consultation document was referred to.
"on the substantive question of whether the system approach or a stand alone approach should be preferred having heard the views of interested parties, the CAA's view is that the stand alone is best calculated to meet its statutory objectives. The CAA is not persuaded by the concerns of the no-frills carriers that they will have to finance an unaffordable runway…" (3.18)
"…It is possible that in next autumn's White Paper, Ministers may, after taking account of the large range of relevant factors, favour investment in a new runway which could not be financed solely from charges at that airport. Such a runway could bring substantial benefits to users of the other airports in the London system, for instance in reducing the very large costs which airlines are currently incurring because of delays and congestion. But with your proposals, it is not clear to us how such a runway could be financed."
BAA's response to the Consultation Paper stated:
"We currently believe that the option of one new runway at Stansted would be financially viable, subject to the scale of the additional costs calculated in SERAS, but the charges needed to remunerate the investment would need to be shared across the users of the London system as a whole rather than applied to Stansted users only…"
(5) 'Maximum Use' of Heathrow
"7.4 At Heathrow, the maximum use case does not provide any more capacity than the base case which already assumes the construction of Terminal 5. Neither maximum use nor the new runway option presented below assumes any alteration to operation in segregated mode on the existing runways or to the number of night flights.
7.5 In Stage 2 of the SERAS study, options for a single new runway (either 2000m or 4000m long) were considered. The Government has rejected the option of a new 4000m runway, because, while the benefits of short and long runways are comparable, the disbenefits of a long runway (particularly in terms of property demolition) were very much greater than for the 2000m runway.
7.6 The additional terminal capacity (beyond Terminal 5) which would be required to support a new short runway is assumed to be provided through reconfiguration of the Central Terminal Area (CTA) – Terminals 1, 2 and 3 – and the space between the existing runways at Heathrow and to the south of the airport site near Terminal 4."
"A new 2000m long runway would be built to the north of the existing airport (see Figure 7B). This is about half the length of the existing runways, and could be used only by smaller narrow-body planes. The new runway would be used both for landings and take-offs (known as 'mixed mode') throughout the day. The existing runways would continue to operate in segregated mode with alternation as they do now. Over time, it might be possible to achieve more intensive use of the existing runways through advances in air traffic control technology and / or by introducing mixed mode operation on those runways. Such developments could increase Heathrow's total capacity in this option from 116mppa to about 128mppa, assuming the construction of additional terminals and other facilities."
a) Contrary to the clear indication in the Consultation Paper, the White Paper expressly contemplates the use of mixed mode to plug gaps in capacity that may arise in the short and medium term (11.66).
b) The need for a sixth terminal to make use of the contemplated runway was introduced in paragraph 11.65 of the White Paper as a result of representations made by BAA.
c) The text of the White Paper does not limit the runway contemplated for Heathrow to the short runway which was consulted upon, although the Claimants accept that the indicative diagram on page 124 of the White Paper does show a shorter runway.
d) The Consultation Document did not envisage the adoption of an "inverted SERAS option 12" (one new runway at Stansted followed by an additional runway at Heathrow). Combination 12 in Table 14.3 in the Consultation Document proposed a new runway at Heathrow by 2011, followed by one new runway at Stansted by 2021.
"Another runway at Heathrow could not be considered unless the government could be confident that levels of all relevant pollutants could be consistently contained within EU limits",
it was reasonably foreseeable that the acknowledged environmental problems at Heathrow might either prevent altogether, or alternatively delay, the provision of additional runway capacity at that airport.
"These were set out in the first bullet of paragraph 5.18 of the airport operator's consultation response, Responsible Growth, essentially, moving the runway 100m to the east and a revised runway and taxiway layout".
"The airport operator argued in its consultation response that the full potential of a third runway could not be realised without a sixth terminal to the north of the A4. They suggested four possible options for new facilities. In all cases more land would be needed than allowed for in the consultation option, which assumed that terminal capacity would be provided for within the airport boundary. In principle, we recognise the force of these arguments and suggest that the operator should carry out further work on proposals for terminal capacity and an appraisal of the impacts on the basis of which a further consultation would be required."
"Even if it were policy simply to make the best use if existing runway capacity, this would not remove the problem in relation to Terminal 5. While BAA argued throughout the inquiry that Terminal 5 required no change to the way in which the runways are operated at present, there was evidence that the capacity of the runways would be significantly increased if they were operated in mixed mode with arrivals and departures on each runway throughout the day. This would involve the loss of runway alternation which guarantees residents periods of relative quietness for part of each day and would be fiercely resisted on environmental grounds".
"The future contribution of Stansted
9. Only Stansted can provide capacity to meet additional demand in the early to mid 1990s. Subject to an unequivocal declaration of intention on the part of the Government to limit the future growth of Stansted and the imposition of appropriate conditions, the necessary planning permissions to enable Stansted Airport to be developed to a capacity of 15 million passengers per annum should be granted as expeditiously as possible.
10. From the outset, the development of Stansted Airport should be planned so as to be capable of providing an ultimate capacity equivalent to that which can be accommodated on the airport's single runway. Such capacity is likely to be approximately 25 million passengers per annum.
The limit on development at Stansted
11. There are compelling reasons which are now manifest as to why a second runway at Stansted should not developed under any circumstances and Government should make an unequivocal declaration of intention that a second main runway will not be built. No planning permission should be granted in the absence of or prior to the making of such a declaration."
"13.1 To expand the airport by fully developing the safeguarded area with a second runway and all the necessary ancillary operational works and buildings would be an unprecedented and wholly unacceptable major environmental and visual disaster which would not be capable of being mitigated to any material degree by additional landscaping.
13.2 A statement should be made of behalf of the Government in unequivocal terms that the principle of developing Stansted beyond the capacity of its single runway has now been abandoned and that it would never be brought forward again. "
"The construction of a second runway and further airport development in the safeguarded area would constitute an unprecedented and grotesque invasion of a large area of pleasant countryside with grievous visual and other environmental consequences and would be wholly unacceptable."
"Whilst I accept the general principle that demand for additional airport capacity should be met in the south east as and when it arises, the construction of a second runway at Stansted and further development of the safeguarded area would involve such identifiable and enormous costs, penalties and consequences over a wide spectrum of material considerations that the prospect of such development must be unequivocally ruled out now."
"The Inspector also recommended as a condition for the grant of planning permission that the Government should make an unequivocal declaration of intent that a second main runway would not be constructed. On current demand forecasts, it is very doubtful whether such a runway would be justified in the foreseeable future, while it is clear that it would give rise to severe environmental pressure. The Government therefore unreservedly accepts the Inspector's recommendation in this respect."
"11.26 Because we expect there to be an increasingly severe shortage of runway capacity at the major South East airports over the remainder of this decade, making full use of the available capacity at Stansted will be essential to avoid stifling growth. Making full use of Stansted would generate large net economic benefits. We therefore support growth at Stansted to make full use of the existing runway and expect the airport operator to seek planning permission in good time to cater for demand as it arises.
11.27 Turning to the option for a second runway at Stansted, this would provide a very substantial amount of additional capacity for London and the South East – up to 46mppa. We expect that there will be strong demand for this capacity, especially as there will be little runway capacity available at other major South East airports by the time that the new runway could open (around 2011 / 2012). Traffic would therefore grow rapidly, and the new runway would generate substantial net benefits to the national economy. The space available for expansion means that the development of the airport could be phased in an efficient way such that terminals and stands could be added as and when needed."
Paragraphs 11.28 to 11.38 discussed such issues as regional and sub-regional growth, transport links, noise impact, NO2 limits and urbanisation. Paragraphs 11.39 to 11.41 said:
"11.39 The option for a new runway at Stansted would require substantial land take and the loss of around 100 properties. The loss of two Scheduled Ancient Monuments and 29 Grade II listed buildings was a cause of particular concern in the consultation. The precise land boundary of a proposed development of Stansted will be a matter for the airport operator in the first instance in developing a detailed design for planning approval. However, the Government would wish the operator to consider positively how any listed buildings that would be affected might be relocated.
11.40 On balance, taking into account all relevant factors, and in the light of the responses to consultation, the Government now supports the development of a second runway at Stansted as the first new runway to be built in the South East. We expect it could be completed by around 2011 or 2012. The new runway would be the wide-spaced runway option presented in the consultation document, as shown on the map below.
11.41 The airport operator will need to put in place a scheme to address the problem of generalised blight resulting form the runway proposal (see paragraphs 12.13 to 12.17)."
"it must be stressed that this map is only indicative pending detailed design work and the submission of a planning application by the operator. The map should not therefore be taken to be a formal safeguarding map".
"The East of England Regional Assembly is currently finalising its draft Regional Planning Guidance (RPG) which will set out the development strategy for the region to 2021. It is doing so on the assumption that Stansted will expand to the capacity of the existing runway. Planning for a second runway at Stansted will require more detailed consideration of airport development and transport issues, beyond what will be possible in RPG14. This may require a limited review of the RPG. The Government supports the view that development of a second runway should be done in a way that respects the character of the countryside around Stansted.
The Government will not promote or pay for the development of Stansted. New airport capacity should be paid for by airport users. We look to the airport operator to take it forward in a way that is responsive to users, and to provide necessary funding. It is a responsibility of the regulator, the CAA, amongst its statutory duties, to encourage timely investment. The Government expects both parties, regulator and airport operator, to secure an appropriate framework to bring the development to fruition. It expects this process to be guided by the decisions in this White Paper, as well as by the regulator's duties towards users of airports, towards the operation of airports, and towards investment in new facilities at airports.
The Government will work with the airport operator, the SRA, and a range of regional and local partners in taking forward work urgently to identify robust and affordable surface transport solutions that would support growth of the airport and across the region. The airport operator will be expected to contribute to the costs of rail and road improvement to the extent that these are required to cater for airport-related traffic. Their contribution is likely to be substantial, in particular for increased rail capacity."
a) That the best use should be made of the existing runway at Stansted;
b) That two new runways should be provided in the South East in the 30 year period to 2030; and
c) That one of those new runways should be provided at Stansted.
"Another runway at Heathrow could not be considered unless the Government could be confident that levels of all relevant pollutants could be consistently contained within EU limits".
"In the previous section we described the forecast growth in the demand for air travel over the next 30 years and described the benefits of providing new runway capacity. This chapter introduces options for adding capacity at each of the main South East airports as well as a potential new airport by the Thames Estuary, in North Kent and explains in broad terms how the impacts of the runway options were appraised"
"6.5 In the SERAS study, options were developed in some detail to allow a robust appraisal of their impacts to be made. But it is important to remember that the Government is not at this stage bringing forward definitive proposals – that will be for the relevant airport developer in due course.
6.6 The layout plans of the options at each airport in the following chapters are not detailed design proposals. The location of new runways and the new boundary of each airport have to be reasonably precise to allow their impacts to be appraised; but they are not definitive. New road and rail access is also shown but is illustrative. We are not attempting to say where other facilities such as terminal buildings, car parking and maintenance facilities might be, but adequate space for these has been allowed within the airport boundary. To give an understanding of the scale of the options at each location, the layouts shown are overlaid with Ordnance Survey grids, all at one kilometre spacing."
"9.4 Options for one, two and three runways are proposed. For the larger options it is assumed that the role of the airport would change. Stansted is currently a major airport for low cost carriers and serves a relatively local catchment. With expansion there, and particularly if there were no significant increase in capacity at other South East airports, Stansted would have the infrastructure to become a second international hub airport.
9.5 The base case assumes the current capacity of 15mppa (i.e. it does not assume the additional 10mppa increase to 25mppa for which BAA is seeking planning permission).
9.6 The assumed capacity of the existing runway is 35mppa".
"[the] potential combinations of airport development options on which the Government is consulting the public. One is based on options for maximum use of the existing number of runways (but no additional runways). The others contain proposals for a total of one, two, three or four new runways at a range of locations, including the possible new site at Cliffe in North Kent. We report the results of the economic appraisal of the various potential combinations of development".
"This Annex explains the background to the SERAS study that was commissioned by the Government in 1999 to examine the demand for airports up to 2030 and consider options for airport capacity to meet that demand. It goes on to explain how SERAS was carried out including the different criteria that were used to appraise the various airport development options."
"There are a number of lengthy reports and a larger number of supporting technical documents. A complete list of study documents is in Annex C. This consultation document contains the key information from those reports needed to understand the choice of packages of airport development and the options at each airport. But for a full understanding of the complex appraisal process you will need to look at the relevant supporting documents."
"The principal objective of Stage One was to establish the feasible options for the development of capacity at each airport in the South East and to appraise those options in order to determine which should be carried forward to Stage Two. In Stage One each airport was considered in isolation. "
"The limited consideration of other "one new runway" options at SERAS Stage 1 is buried deep in the voluminous supporting material. This proved difficult for the local authorities to obtain and analyse and, in my opinion, would have been quite beyond the abilities of most lay consultees."
"the level of option planning and analysis applied in this first stage has to be appropriate to the number of options to be dealt with. The objective is to do sufficient work to allow meaningful appraisal and comparison between options at each site. Subsequent stages will better define and refine capacities and facility requirements for selected options; a degree of approximation is necessary and deemed acceptable at this stage..."
" As for all parts of the SERAS study, the appraisal method is constrained by the requirement not to compromise the confidentiality of the study. Thus the methods proposed can only draw on existing, publicly available data and any data collection can be only by literature review, plans review and desktop studies with no consultation..."
"At Stage 1, the effects of Airport Induced Urbanisation have not been included as induced urbanisation has yet to be defined. It will be included at later stages. At Stage 1 the assessment of effects of Airport Related Surface Access changes on resources has been confined to a limited commentary on the proximity of proposed new or modified surface access infrastructures (road and rail) to nationally or internationally designated nature conservation sites, AONB's and residential areas. Effects associated with existing surface access links subject to airport induced changes in traffic flows are not considered."
"Essentially the same as Option 4 in runway layout terms but is operated in mixed mode. This enables full advantage to be taken of the land area enclosed between the runways for terminal / apron development. There are three terminal units, which BAA estimated would each have to be capable of handling up to 35mppa."
The remaining Options, 6 – 11, and the three variants, were different ways of either providing two or three new runways at Stansted.
"the threshold criteria used to appraise the significance of effects have been derived from existing guidance in additional to professional judgement. These will be further developed at subsequent stages of the appraisal. At Stage 1 negative effects have been categorised as of High (HA), Medium (MA) or Low (LA) adverse significance and potential beneficial effects have also been identified, although they have not been ranked at this stage. The thresholds for allocating HA, MA or LA significance to effects identified in the Stage 1 study are higher than would normally be use in an EIA since at this stage only relatively high-level effects are being considered and are as follows:
- HA – an effect which in isolation could have a material influence on the decision making process
- MA – an effect which on its own could have some influence on decision making, particularly when combined with other similar effects
- LA – an effect which on its own is likely to have a negligible influence on decision-making, but when combined with other effects could have a more material influence
In addition a category of HA* has been included for effects which in isolation could have a substantial bearing on decision-making. This is applied at commentary level."
"the effects are likely to be at least HA as a result of the loss of 12 listed buildings…" (4.4.44)
These findings, and many others, were set out in tabular form in Tables 4.20 – 4.22. Again by way of example, Table 4.20 stated that in terms of agricultural land take, Option 1 would have a medium adverse impact with 240 ha being lost, and that there would be a low adverse impact on landscape with 90 ha being lost; whereas Option 5 would have a high adverse impact under both of these heads with 675 hectares of agricultural land, and 590 ha of Area of Special Landscape being lost. As envisaged in SEEAF (paras 25 and 26 above), the Stage One Appraisal Findings Report did not attempt to draw any conclusions as to which of the options at Stansted or elsewhere should be preferred.
"Stage 2 of SERAS has been asked to appraise a number of options at the principal South East airports including new sites. Expected future scenarios at other smaller airports have to be identified to establish the contribution they might make to accommodating commercial aviation activity.
The options at each of the main sites fall into the following categories:
- A base-case option, representing the option and its capacity currently envisaged in the land use planning system
- An option which represents maximum use of exiting runways, and
- Options which represent additional runway and terminal capacity at each airport"
"The options at the main sites are combined into a number of packages, 22 core packages in total…For each main airport option a 'representative case' has been defined, in terms of the combination of that airport option in a package with appropriate assumptions about the other South East airports. These representative cases, and the resulting usage forecasts and passenger allocation model runs, will form the basis of the appraisal of each option.
The use of representative cases is the preferred approach to the appraisal of a large number of options that can be combined in different ways in a large number of packages the impacts of which will vary from year to year throughout the appraisal period. Full appraisal of all options in all packages in all years would not be feasible…"
"Key limitations at Stage One.
The Stage One Appraisal was confined to a desk study, based on designations and OS maps, which limited the amount of contextual information that could be included in the appraisal. Effects on landscape character require consideration of context which can only be verified with site visits.
Only designated resources were considered with the value of the resource effectively defined as national, county or district (derived from designating authority). No consideration of effects on undesignated resources or on overall landscape character were been [sic] made. The study therefore was not consistent with an Environmental Capital Approach / GOMMS which requires consideration of both designated and undesignated resources and on cumulative effects on overall character.
Criteria to assess the severity of effect on each designated area were quantitative and defined either in terms of hectares of land take or by distance from the designated landscape to the airport site. They did not take account of qualitative characteristics and features of the landscape. (e.g. pattern, tranquillity, scale, rarity etc.) which are required for an environmental capital approach.
The SERAS Stage One Appraisal did not consider the visual impacts i.e. the impacts on human receptors e.g. in residential or amenity areas."
Chapters 6, 8, 9 and 10 of the Stage Two Methodology Report explained the further studies that would be undertaken in respect of Land Use and Urbanisation, Impact on Water Resources, Noise Impact and Air Quality Impact.
"There have been two main appraisal stages in SERAS. In Stage One a number of development options at different airport sites in South East and East of England were appraised. On the basis of this appraisal, ministers identified a number of options to be taken forward for further appraisal in Stage Two. In Stage Two selected options have been combined into packages which combine different development options at a number of airports. This report presents the main findings of this Stage Two appraisal."
"5.1.1 This section summarises the options that have been appraised at each airport in Stage Two of SERAS. It also introduces the concept of the Stage Two appraisal packages which combine individual airport options across the system to provide differing levels of system-wide capacity.
5.1.2 Explicit details of each option are provided under the relevant section for each airport in chapters 7 – 12. In principle, options at each of the airports fall into the following categories:
- An option which provides the level of capacity currently envisaged in the land use planning system;
- An option which represents the maximum use of existing runways; and
- A number of options which represent additional runway and terminal capacity at each airport"
"The Stansted options appraised in Stage Two are:
- Base-case. The current land use planning system;
- Maximum Use of the Existing Runway;
- Option 5 – one new full-length runway separated from the existing runway by 2450 m and with a large stagger, operating in mixed mode;
- Option 11 – adds a further runway to Option 5: a full-length close-parallel runway to the north west of the existing runway and operating as a dependent pair;
- Option 7 – adds a fourth runway to the three runways in Option 11: a full-length close-parallel runway to the Option 5 new runway."
"22 Ministers met officials in the week of 11 July 2001 to consider the full range of options for each airport considered in Stage One of the SERAS study, and to decide which of these options to take forward for further detailed appraisal in Stage Two,
23 Officials presented the results of the Stage One appraisal for each airport and invited Ministers to select their preferred options. Based on these decisions Ministers were then invited to consider the grouping of different options into 'packages'.
24 Ministers had before them extensive advice, including the Stage One Appraisal Summary Tables. From these, the following conclusions were drawn in respect of comparisons between the options for one new runway at Stansted:
- On capacity gain, options 5 and 8 offered the greatest benefits, option 1 the lowest benefits, and the other options an intermediate level of benefits;
- On capital costs, Option 5 and 8 were the most expensive, option 1 the least expensive, with the other options having an intermediate level of costs;
- On residential property take, options 4 and E4 had the lowest adverse impact, with the other options having a Moderate Adverse impact;
- On ecology, option 1 had a Moderate – High Adverse impact, and all the other options had a High Adverse Impact, with option 8, E8a and E8b having the greatest adverse impacts;
- On heritage, all the options had a High Adverse impact, with options 8, E8a and E8b having the greatest adverse impacts;
- On landscape, option 1 had a Low Adverse impact, and all the other options had a High Adverse impact, with options 5, 8, E8a and E8b having the greatest adverse impacts;
- On noise, options 2 and 3 were expected to have the lowest adverse impacts, followed by option 4, then option 1, then options E4 and 5; and options 8, E8a and E8b were expected to have by far the greatest adverse impacts;
- On air quality, options 1, 2 and 3 were expected to have the lowest adverse rankings, Option 5 the highest, and the other options intermediate rankings;
- On public safety, all the options had a Low Adverse impact; with options 1, 2, 3, 4 and E4 expected to have the lowest impacts; followed by Option 5, then options 8, E8 and E8b;
- On Green Belt and planning issues, option 1 had a Moderate Adverse impact, and all the other options had a High Adverse impact, with options 8, E8a and E8b having the greatest adverse impacts.
25 Ministers then considered the weightings to be attached to the different appraisal criteria. They concluded that a high weighting should be attached to the capacity gain criterion, since it was the extra capacity which would produce economic benefits, and bearing in mind the scale of the forecast increase in demand for South East airports.
26 Taking account of this weighting, the tentative conclusion was that Option 5 was the most promising option, followed by options 3 and 1; that options E8a and E8b were the worst; and that options 2, 4, E4 and 8 were in intermediate positions.
27 The robustness of this tentative conclusion was then tested, by applying higher weightings to each of the adverse impacts. The results of these tests were:
- Option 5 remained the most promising option when greater weight was given to property take, ecology or heritage, and was joint best when greater weight was given to capital costs or Green Belt and planning issues;
- Option 3 might be preferred if greater weight was given to noise, air quality or public safety; and
- Option 1 might be preferred if greater weight was given to the landscape impact
28 Taking account of all considerations above, the options chosen for further appraisal in Stage Two were 5, 11 and 7. Option 5 adds one new full length runway 2450 m to the east from the existing runway and with a large stagger; option 11 adds a further full length close parallel runway to the north west of the existing runway, and option 7 adds a fourth runway, in close parallel to the east side of the first new runway, to create two pairs of close parallel runways.
29 Following the conclusion of Stage Two, Ministers decided to consult on all three options. It was recognised that the role of the airport would change with the larger options, from what is now predominantly a low cost carrier airport serving a relatively local catchment to a second international hub airport.
30 The selection of Option 5 the Claimants now seek to challenge was therefore made by July 2002. To my knowledge, no challenge was brought to this choice of option at that stage.
31. I accept that the conclusion that Option 5 should be taken forward rather than any of the other single runway options reflects to an extent the Ministerial view that a high weighting should be placed on capacity issues, but there is nothing inherently unreasonable or wrong about this. In the Stansted context the difference in capacity between Option 5 and the other single runway options was very considerable (82mppa as compared to 67mppa). Ministers were entitled to consider that this was a matter on which considerable weight should be placed."
The Defendant did not disclose any documents dealing with the choice of Option 5. No further information was provided about the weighting 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 Health Authority ex parte Coughlan  QB 213 per Lord Woolf MR at para 108. This passage was cited by Maurice Kay J in paragraph 7 of the Medway case. He also referred to the dictum of Schiemann LJ 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."
"(d) The various options for airport development that were examined in SERAS were always intended to be illustrative. By way of example, paragraph 5.1.2 of the SERAS Stage Two: Appraisal Findings Report makes it clear that the options selected for appraisal at each airport were 'representative' of three scenarios:
- The level of capacity currently envisaged in planning terms
- Maximising the use of the existing runway configuration
- Increasing runway and terminal capacity
(e) The inclusion of options for [Luton in the White Paper and the first and second Consultation Documents] is consistent with this. Paragraph 10.5 of the second Consultation Document states that:
"The options worked up consider how best to maximise the use of a single runway"
(f) Given this, it is difficult to see how the Claimants could have a legitimate expectation of further consultation before the inclusion of reference to the runway extension option in the White Paper when such an option was simply illustrative of a policy principle."
I will deal with the implications of this for Luton in paras 290 and 291 below.
a) No reasons were given for the choice of Option 5 after Stage One;
b) Stage One did not purport to be anything other than a desk top study of some, but not all of the relevant planning and environmental issues; and
c) The Stage Two Reports expressly stated that the various options had been chosen as representing additional runway and terminal capacity at each airport;
any consultee carefully reading the SERAS reports would reasonably have concluded that Option 5 was not being put forward as the one new runway option at Stansted, and that he / she was not being asked to answer the question: if there is to be one new runway at Stansted, what form should it take, should it be Option 5 or some other option? It is true that Option 5 was, from Essex / Herts' point of view a "worst case" option for one new runway, but for the purposes of comparing that option with two new runway and three new runway options, and for inclusion in the "packages" in Chapter 14, it would have been reasonable to adopt the option which gave the greatest capacity with one new runway. It is no answer to say that the Consultation Document consulted on a representative wide-spaced runway. When the Consultation Document and the Questionnaire wished consultees to choose between close parallel and wide-spaced options for new runways they both said so, and asked the appropriate questions (paras 163 and 164 above).
"The Government is committed to ensuring that the long term development of aviation is sustainable. In practice this will mean striking a balance between the social and economic benefits of air travel and environmental effects of any developments. The Government believes that, in principle, its policy for airports in the South East should aim both to maximise the significant social and economic benefits that growth in aviation would bring whilst trying to minimise the environmental impacts. However, the Government wants to consider the responses to this consultation before coming to a view on how to strike the right balance."
Striking the right balance between the social and economic benefits of capacity gain and the environmental impacts of providing additional capacity was a key issue about which consultees had been told that their views were being sought.
"The Government does not believe that either of the extremes – failing to provide additional capacity, or encouraging growth without regard for aviation's wider impacts – is an acceptable option for the future. The Government is committed to sustainable development, with four main aims:
- Social progress which recognises the needs of everyone;
- Effective protection of the environment;
- Prudent use of natural resources;
- Maintenance of high and stable levels of economic growth and employment."
"The weight Ministers put on each consideration will be made clear in the decisions set out in the air transport White Paper." (para 164)
There is no explicit statement that a higher weighting had been placed on capacity gain.
"The policies supported in the White Paper are a clear indication that Ministers attached significant weight to providing new airport capacity, especially in the South East, where 'provision should be made for two new runways in the South East by 2030'. However, it is evident from the White Paper that the Government is not seeking to "predict and provide" for capacity, but taking a balanced and measured approach. In particular, the two additional runways proposed in the South East would not meet the central forecast of unconstrained demand in the South East."
"A clear statement of policy in the White Paper will be an essential component of the subsequent authorisation process."
"A further consideration is commercial viability which is a hurdle that must be passed for airport development on both existing and new sites. A policy that relied on options that could not be funded by the private sector for the bulk of a major airport investment would not have been a useful outcome." (page 163)
"In recent years, the great majority of airport projects have been undertaken on a fully commercial basis, without public sector subsidy. This applies both to airports which are privately owned and those which are owned by local authorities. The Government expects this pattern to continue and does not expect to commit public funds."
"Our analysis shows that by 2011 there will be a substantial excess of demand for runway capacity over supply throughout South East England. Therefore new runway capacity, at any location which is well connected to the major centres of market demand, should attract large number of flights and passengers. However, experience at Stansted in the early 1990s suggests that there is no guarantee of a rapid growth of traffic."
"9.30 In BAA's view, to finance any of the SERAS runway options at BAA airports, it would be preferable, if not necessary, to draw on the overall resources of the South East system. This would mean increasing the level of charges for all passengers using BAA's South East airports to pay for the investment in new facilities. The Government and Competition Commission have consistently adopted this approach over the last 20 years when considering airport charges at BAA's London airports. Maintaining this approach would continue to be justified on the grounds that all users would benefit from the provision of additional capacity in the South East, irrespective of its location, as a result of the reduced congestion, enhanced airline competition and lower airfares. There would be wider public interest benefits to developing airport infrastructure in a way that underpinned the economic health of London, the South East and the UK as a whole.
9.31 There is also a considerable risk that by adopting a stand alone approach, the Government or the regulator would jeopardise the timely provision of additional capacity in the South East. Without financial support from Government, the airport operator would have to wait until demand, and hence airlines' willingness to pay for new capacity, had risen to a level that would justify investment in the new runway. Such a delay in providing new capacity would not be in the interests of airlines, their passengers or the wider economy.
9.36 Until now, investments at BAA's London airports have been remunerated on a system-wide basis. In BAA's view, any shift away from this approach, to financing investments on a stand-alone basis could in many cases jeopardise the timely delivery of new runway capacity. In addition to this important point of principle, the preliminary indications from our work on the DfTs financial appraisal have the following further implications for the future economic framework of BAA's airports that the Government will need to develop to support the delivery of its forthcoming White Paper:
- A new runway at Heathrow could be remunerated at 12.5% by maintaining permanently the level of charges which will apply at the end of BAAs next regulatory period (2008/9 – 2012/13), subject to the scale of additional costs associated with design and layout changes, and environmental mitigation and compensation.
- A new runway could be provided at Gatwick and / or Stansted, but a system-wide approach to airport charges would make it a substantially more attractive financial proposition than a stand-alone approach.
- The scale of costs and the considerable increase in charges needed to remunerate the provision of two runways at Cliffe make this the least financially attractive option.
- BAA would almost certainly need to raise new capital from a range of sources to fund new runway development at any of its South East airports, and the expected levels of dividend and interest cover generated by the investment would need to be sufficiently attractive to make it possible to raise new funds on reasonable financial terms.
- There would be a need for continued support for the principle of raising the level of aircraft charges prior to any new airport development coming on-stream in order to smooth the increase in airport charges that would be required to remunerate the development over a period of time."
"The Government will not promote or pay for the development of Stansted. New airport capacity should be paid for by airport users. We look to the airport operator to take it forward in a way that is responsive to users, and to provide necessary funding. It is a responsibility of the regulator, the CAA, amongst its statutory duties, to encourage timely investment. The Government expects both parties, regulator and airport operator, to secure an appropriate framework to bring the development to fruition. It expects this process to be guided by the decisions in this White Paper, as well as by the regulator's duties towards users of airports, towards the operation of airports, and towards investment in new facilities at airports. "
"87. Paragraph 47 of the Essex claim raises the allegation that the promotion in the White Paper of a second runway at Stansted was perverse and therefore unlawful because of the uncertainty about its funding. Paragraph 108 of the Wandsworth challenge raises similar issues.
88. I do not agree with these propositions. In my view, it was perfectly reasonable for the government to proceed on the basis that a second runway at Stansted would be funded so as to enable its development as the first runway to be built in the South East within the timescale envisaged in paragraph 11.11 of the White Paper, notwithstanding the fact that BAA in its consultation response indicated a strong preference for a 'systems' approach to be adopted. I make the following background points.
89. First, BAA, in their Consultation Response 'Responsible Growth' positively asserted that a second runway at Stansted was commercially viable and could be funded on a systems approach. This is made clear at a number of places, particularly paragraph 9.36 and 14.7.
90. Second, in Responsible Growth (paragraph 9.1) BAA proceed on the same basic assumption as SERAS that airport charges would need to increase in real terms beyond current levels in order to fund new runway development in the South East. Both the DfT (for SERAS) and BAA (for Responsible Growth) appraised the likely level of increase in airport charges required in order to achieve an acceptable rate of return on investment in a new runway development at Stansted and other SERAS options, both on a stand alone and a systems basis (Responsible Growth paragraph 9.15). BAA based its appraisal on less favourable assumptions than those made by the DfT and reported the likely need for a relatively higher level of increase in airport charges in order to fund new runway development both on a stand alone and a systems basis.
91. Third, although the current policy of the CAA is to maintain a stand alone approach, that policy embraces a caveat, recognising that BAA might wish, in the next review, to advance a case that the policy should be modified if there was compelling evidence that this was in the interests of users as a whole. In a speech delivered on 10 March 2004, the Chairman of the CAA, Sir Roy McNulty, said that the working assumption should be that CAA would continue to regulate BAA's designated airports on a stand alone basis up to 2008 (and beyond that date); but that the caveat in current regulatory policy meant that CAA would be prepared to consider modifying it if presented with compelling evidence that to do so would be genuinely in the interests of users as a whole and that such change would not be unduly distortionary or discriminatory as regards other airports in the South East.
92. Fourth, taking account both of BAA's consultation response and of CAA's current regulatory policy, the Department discussed all aspects of the funding of an additional runway at Stansted with Treasury. There were also some discussions of technical aspects with CAA. In the light of those discussions, Ministers were advised and took the view that, under appropriate circumstances, stand alone funding could be achieved for the development of an additional runway at Stansted within the timescale envisaged in the White Paper. I return to this point in paragraphs 104 to 106 below."
"104. Taking account of BAA's consultation response and of CAA current regulatory policy…, DfT discussed all aspects of the funding of an additional runway at Stansted with Treasury. There were also some discussions of technical aspects with CAA. The discussions were on the basis that stand alone development of an additional runway would be supported by BAA's overall balance sheet including its interest cover. These discussions had regard to the range of cost and revenue assumptions used by DfT and BAA in their respective financial appraisals. 'Demand Risk' (i.e. revenues less than expected given possible levels of airport charges) and 'Cost risk' (i.e. capital costs higher than expected) were considered. DfT's financial appraisal was reviewed and the robustness of its cost and revenue assumptions were considered having regard to the alternative assumptions made by BAA for the purpose of its consultation response.
105. In the light of those discussions, Ministers were advised and took the view that, under appropriate circumstances, stand-alone funding could be achieved for the development of an additional runway at Stansted within the time scale envisaged by the White Paper. Ministers were further advised and took the view that, at this stage policy should at least embrace the option of a systems approach, having regard to the risks and uncertainties. They felt that it was unnecessary and indeed premature at this stage to choose between the two possible approaches to funding; and that the White Paper ought not to pre-empt the decision of the regulator on this matter.
106. For these reasons, the textbox at page 118 of the White Paper did not state a view on whether funding of the additional runway at Stansted should be on a stand alone or on a systems basis."
(1) A 40 page internal paper prepared by the DfT entitled 'Funding the first runway development at an airport in the South East of England', undated but produced on the 3rd November 2003 ('the Long Paper');
(2) A 4 page internal paper prepared by the DfT, undated but produced on the 3rd November 2003, entitled 'Funding a Second runway at Stansted' ('the Short Paper'); and
(3) A 69 page revised draft final version, dated December 2003, of a confidential report prepared by the CAA at the request of the DfT entitled 'Airport Expansion in the South East' ('the CAA Report').
"Whilst the CAA has incorporated these assumptions into our analysis we take no responsibility for their accuracy. Whilst we have commented on DfT assumptions as appropriate we have not reviewed or audited them. Should these assumptions change, our findings could change materially".
"In summary our findings suggest that prices could need to rise considerably at Stansted and Gatwick, at Heathrow incremental costs are spread over a broader passenger base and as such price rises are moderate by comparison."
"In principle, funding an additional runway at either Heathrow or Stansted on a stand-alone basis should be achievable, provided BAA delivers Terminal 5 on time and to cost (as seems to be supported by progress there since construction started), and provided a good business case can be made for the additional runway.
A new runway at Heathrow would cost more than one at Stansted, but Heathrow's 'revenue risk' would be reduced in part by the ability and undoubted willingness of airlines to pay higher airport charges there…The key funding risk of an additional runway at Stansted on a stand-alone basis is if principal airlines using Stansted are unwilling to pay cost-reflective airport charges; comfort on this point is necessary before major investment starts. However, revenue risk in terms of its underlying passenger demand is not a substantial cause for concern given excess demand in the South East system, although market appetite for an additional Stansted runway would be affected if material additional capacity at Luton is coming onstream at the same time. 'Cost risk' should be less at Stansted – with modular development of terminal capacity – than at Heathrow. On balance, an additional runway at Stansted opening in 2012, should be fundable on a standalone basis.
There are implications for an additional Stansted runway as a first additional runway in the South East if a third Heathrow runway (or the adoption of mixed mode at Heathrow) remains a prospect. But this should not be over-emphasised. Using older versions of the DfT Air Passenger Forecasting Model, there would have been concern about the fundability of a Stansted runway as the first additional runway in the South East, if a subsequent Heathrow runway had NOT been ruled out. This arose because of the 'seeding' assumption that was then made for long-haul services at Stansted. In those circumstances, it would have been unlikely that any significant amount of long haul capacity would have started up operations willingly at Stansted.
'Seeding' is no longer required in the modelling to get long haul to Stansted. A key point in the forecasts is that Heathrow will strengthen further as a business airport, while Stansted will continue mainly as a leisure airport. Like the larger airports in the regions, Stansted should serve some second-tier leisure-oriented long haul services as well as a full range of short haul services. Heathrow and Stansted will not have completely differentiated markets, but funders could well see the commercial case for a leisure-oriented additional runway at Stansted and a business-oriented and premium runway at Heathrow.
It would be difficult, however, to fund an additional runway at Stansted opening in 2012, followed by an additional Heathrow runway opening soon after, say 2015. It would be better in funding terms if that Heathrow runway opening was delayed until 2020, by which time demand to travel through South East airports is forecast to be twice current levels. Since an additional Heathrow runway is unlikely to meet EU air quality conditions by 2020 (if at all), any overlap with an additional Stansted runway should not be a problem." (emphasis in original)
"The Short Paper drew on the Long Paper's detailed appraisal of (inter alia) the potential for developing additional runway at Stansted on a stand alone basis. It also drew upon the modelling work carried out by the CAA at the DfT's request and for the purpose of the CAA Report. Reflecting the findings in the Long Paper, the Short Paper concluded that additional runway capacity at Stansted should be fundable on a stand alone basis provided, in particular, that cost-reflective airport charges were in place. The Short Paper set out the principal considerations which led the DfT to that conclusion. DfT recognised the risk that, despite the expected scale of the suppressed passenger demand in the South East within the next ten years, low cost airlines might not be willing to pay such cost-reflective airport charges. Having regard to those considerations, Ministers were advised and took the view that, under appropriate circumstances, stand alone funding could be achieved for the development of an additional runway at Stansted within the time scale envisaged by the Air Transport White Paper."
"There is collective agreement between DfT, [The Treasury] and CAA that we cannot state categorically that a new runway at Stansted is not financeable on a stand alone basis but, due to the higher degree of revenue risk at Stansted (certainly compared with Heathrow), BAA could choose to delay development to allow the financing situation to improve.
There is agreement that there is likely to be sufficient strength in the collective revenue stream from the three BAA London airports to fund a new runway at Stansted for 2011/12. Therefore, financing is likely to be more immediately achievable under the hypothetical 'system approach' to regulation, provided that the investment was allowed in the price control.
(The CAA, as airport regulator, has made its views known on the merits of the current 'stand alone' approach and maintains that this is the most appropriate approach for commercial development. The CAA would need compelling evidence that users in aggregate would be better off to move from a 'stand alone' approach. A change in policy so soon after promulgation could emphasise regulatory uncertainty, something the capital markets would factor in.)"
"[The Treasury] (with CAA support) are concerned that there is a high degree of revenue risk as the required level of increase in landing charges is likely to be difficult to achieve at Stansted (compared with Heathrow), for the following reasons:
- As Stansted lacks the market power, BAA may not have the pricing power to increase charges due to monopsony [sic] situation at Stansted, as there are a small number of airlines which use Stansted (compared with Heathrow) resulting in the dominance of Ryanair and Easyjet. This is evidenced by its inability to-date to price up to the cap (£3.10 vs. the £4.89 cap) with incumbent airlines and
- Stansted is predominantly used by no-frills carriers to serve the leisure market. The no frills market is a relatively new and growing airline market and likely to be sensitive to substantial price increases. CAA modelling of £3 increase into the low cost airlines cost base is estimated to result in a 25% reduction in current profit for Ryanair.
DfT believe that Stansted airlines are likely to live with cost-reflective airport charges; these can be passed on by airlines to passengers without threatening airlines' underlying business models including fare structures. £3 is a very marginal part of the generalised costs of travel for a passenger. Incumbent airlines also have limited options to move away from Stansted although they may have more alternative locations at which to grow their business. More generally, evidence of the position today does not inform directly the different circumstances that will apply ten years hence when airlines' business models may have changed and there should be substantial excess demand for air travel throughout South East England.
We cannot state categorically that BAA would take a decision to develop a new runway at Stansted for 2011/12 opening. Deferral of development, or incremental development (such as phasing of terminal capacity and delaying surface access improvements), might be required / is likely. Precisely when BAA would begin to develop Stansted is subject to a wide degree of uncertainty and depends greatly on the development of the airline market over coming years. [The Treasury] is concerned about the potential for serious delay."
"It is apparent from the Key Messages document that the Treasury were concerned that a new runway at Stansted might not be financeable on a stand-alone basis by 2012. The Treasury agreed that such a runway was likely to be financeable on a system basis on that timescale. The major concern with 'stand-alone' was the risk of delay.
Clearly, however, DfT's White Paper reflects collective Ministerial agreement. The Treasury agreed the White Paper with DfT, and DfT's White Paper represented the policy of the Government as a whole. The Treasury agreed with the textbox on Stansted at page 118, including the second paragraph in the box regarding the financing of development at Stansted. The Treasury accepted that a second runway at Stansted could be open around 2011/2012 (as stated at paragraph 11.27), that it could be completed by around 2011 or 2012 (as stated in paragraph 11.40)."
"6. Subsequently, an official level meeting involving DfT, Treasury, No 10 and DEFRA took place on 7 November 2003. This meeting considered both air quality and the financeability of Stansted. Further modelling results at Heathrow were showing that there were severe air quality obstacles that could prevent the development of the first additional runway in the South East there. The meeting then considered whether an early runway at Stansted could be financed. At this meeting, DfT said that it thought an additional runway at Stansted as the first additional runway in the South East could be financed on a standalone basis; the system approach could be used if standalone funding could not be achieved. The Treasury said at this meeting that early expansion could not be financed on a standalone basis rather than on the systems approach.
7. Further bilateral discussions were then undertaken at official level between DfT and the Treasury to find a solution to the key issues around the financeability of Stansted. These discussions led to the key messages paper of 12 November 2003, which is attached to Ms Beckett's Witness Statement. This made clear that, while the Treasury agreed that an additional runway at Stansted was likely to be financeable on a system basis by 2012, their major remaining concern was that a standalone approach could risk delay.
8. An inter-departmental meeting was chaired by the Secretary of State for Transport at Great Minster House on 25th November 2003. At this meeting, concerns were expressed that a new runway at Stansted might not be fundable on a stand-alone basis by 2012. It was argued that in this case the CAA would be prepared to allow BAA to finance development on a system-wide basis. It was further argued that this would be consistent with them discharging their various statutory responsibilities, provided by the Airports Act 1986, which include the duty to facilitate the timely provision of infrastructure, although this would be contrary to the CAA's current preference for standalone regulation. DfT and colleagues would work to ensure that Stansted could be financed without any delay to construction of a first new runway but this would not involve an explicit reference to system-wide funding on the face of the White Paper. Taking account of the advice that a runway at Stansted might well be fundable on a standalone basis, as referred to in paragraph 6 above, together with the options available to the CAA under the Airports Act 1986, it was concluded that the runway could be funded but that the Government should express no view between standalone and system funding.
9. As an outcome of this meeting, a draft of the text box on page of 118 of the White Paper was prepared. This draft was iterated with contributions from Treasury and CAA. This text box in its final form sets out the Government's position on the terms of financing a second runway at Stansted. It is endorsed by all Government Departments, and the White Paper was agreed collectively agreed by Ministers."
"3.24 The CAA's position, as set out in the proposals, was qualified by the statement that "in order to modify its current view that stand-alone regulation should be adopted, the CAA would expect compelling evidence to demonstrate that users in aggregate were genuinely better off as a result, and that the impact was not unduly distortionary or discriminatory as regards other airports in the South East." The CAA considers this allows BAA to present a case justifying subsequent modification of a strictly stand-alone approach consistent with the objectives under the Act, addressing in substance the points made by the Department for Transport and BAA.
3.25 The CAA therefore confirms its position that, subject to this qualification, regulation will be based on a stand-alone basis..."
"The continuing build up of demand foreseen by the White Paper, supported on the supply side by the development of new business models and increased efficiency, provides a favourable commercial backcloth for new airport development. Ensuring that this leads to viable airport projects requires airport developers everywhere to adopt approaches that match what is developed with users' needs. That is the essence of a sound investment programme. However, before, during and since the publication of the White Paper, there has been speculation about how the development of an additional runway at Stansted will be funded. Interest has principally focussed on whether an additional runway could be viable, given the CAA's approach that BAA's London airports should be regulated on an individual, or stand-alone basis…
The central rationale for this stand-alone policy is that it helps to encourage efficient future investment. It is a policy designed to provide BAA with a strong incentive to match the development at Stansted closely with what current and future users at Stansted want and will be prepared to pay for. In practice this approach to regulation represents no more (or less) stringent a test than that which would apply in any other normal commercial situation. A key principle is that investments – particularly large investments – have to pay for themselves.
Admittedly there is a caveat to the current stand-alone policy, the CAA acknowledged that it would be prepared to consider modifying it if there was compelling evidence that to do so would be genuinely in the interests of users as a whole and that such a change would not be unduly distortionary or discriminatory as regards other airports in the South East."
Sir Roy acknowledged that it was possible that the policy would have to be re-examined, but added:
"any such review would need to take into account that the policy is designed to improve the efficiency of investment and therefore – to that extent was – intended to apply long term…"
He concluded the section of his speech dealing with regulatory policy by saying:
"Against this background it seems entirely reasonable that the working assumption should be that the CAA will continue to regulate BAAs designated airports on an individual - or stand alone – basis both up to 2008 any beyond. Equally it would be reasonable for BAA and users to work on the basis that in setting the maximum prices that BAA might charge at Stansted, the CAA will take account of its duty to encourage investment just as we have done in the past."
"The CAA shall perform its functions under [these] 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 investment in new facilities at airports in time to satisfy anticipated demands by the users of such airports…"
Implications of Financial Appraisal
"At Stansted capital costs up to 2017 are £2.8 billion (measured in 2000 prices) and up to 2060 are £3.6 billion. These costs are less than the £4 billion estimated in the original costings of a Stansted runway [for a capacity increase from 35mppa to 82mppa] because of two factors; a revised assumption on surface access costs (now £500 million) and also because the original costs accounted for terminal capacity reaching 82mppa. Passenger throughput in the current modelling is capped at 2030 levels beyond 2030 (at 68mppa) and hence the ultimate terminal requirement is lower an extra 32mppa as opposed to an extra 47mppa."
"The 'Long Paper' reports that 'current modelling capped passenger throughput at Stansted with a new runway at 2030 levels beyond 2030, at 68mppa. That is a reference to the CAA's assumption for the purpose of preparing its Report. The DfT's expectation, however, is that passenger throughput will continue to rise after 2030 until capacity is reached at 82mppa. On the basis of the passenger forecasts in 'Passenger Forecasts – Additional Analysis' that stage is reached in the mid 2030s, because there is no other capacity available in the South East. The final tranche of capital expenditure needed to provide terminal facilities for that post 2030 growth in passenger throughput is not material to the key funding question, which relates to pressure on financial ratios in the period before 2020. The Key Messages paper gives a capital cost for the second runway and association facilities at Stansted of £2.6 billion for 62.6mppa in 2030. This compares with the 'Long Paper' figures of £2.8 billion for 68mppa over the major period of investment up to 2017 and £3.5 billion for the full increment of capacity from 35mppa to 82mppa. "
"Government policy on the other hand deals with the bigger picture which is as it should be. Government has stated that it will support the development as soon as possible of one additional wide-spaced runway at Stansted and that it expects it could be completed around 2011 or 2012. The Government – wisely in our view – has avoided specifying any particular airport development in detail."
"In practical terms the key challenge for BAA will be to develop plans for expansion that meet both their customers and their shareholders needs. BAA Stansted customers will only use the airport if it matches what they want and are prepared to pay for. Shareholders – on the other hand – will only want to proceed with the investment if there evidence that there is a good business case. Both sides – in our view – should be interested in exploring all of the possible alternative developments to determine which options are best…in more detail we would expect BAA to do five things".
"(1) BAA should develop plans that are grounded in the reality of demand at Stansted. This means taking as the starting point the nature of the passengers and airlines currently operating out of Stansted, the proportion of leisure passengers is somewhat higher than that for London airports as a whole, but more critically 84% of air traffic is from so called low-cost carriers compared to 23% across London airports as a whole. Of course the nature of demand may change over time and BAA has to plan developments on the basis of the best possible information on likely future use, but as a starting point we would expect BAA to initiate their planning by taking full account of the needs of its current users.
(2) BAA should recognise and embrace as far as possible the flexibility within the Government's conclusions. The Government has wisely left considerable room for manoeuvre in its White Paper. In particular it has left open what precisely should be built and when in terms of supporting infrastructure to an additional runway (particularly in relation to terminal development). This poses some important questions for BAA about the precise nature and functionality of the development…In setting out the relevant trade offs BAA should have regard to the option to postpone or bring forward certain development in order to match the emerging picture of future demand. The Government has indicated a challenging target date for the completion of an additional runway and supporting infrastructure at Stansted however, the Government has been careful not to set a precise deadline. In our view this gives BAA the freedom to follow a timetable which ensures there is adequate effective consultation on the plans for development including a planning inquiry. It also gives them the freedom to phase development in line with demand. Developing an airport in stages may well carry additional costs compared to single phase development, however, such benefits need to be properly weighed against the risks of building capacity too far in advance of demand. We would expect BAA to want to share these trade offs with users before decisions are taken."
"there are 2 options for maximum use at Luton, a new southern runway and a new realigned runway."
"a further option is contained in the SERAS Stage 2 appraisal findings report for an extension to the existing runway at Luton which LLAOL believes has a multitude of benefits which are described below". (3.12)
The benefits of this further option, which LLAOL believed was "a more deliverable option in financial, operational and amenity impact terms", were then described. LLAOL believed "that this scenario is worthy of consideration by government" (3.21).
"SERAS considered two options for the maximum use at Luton: a new southern runway and a new realigned runway. Chapter 14 shows that the forecast use of Luton is strongly influenced by the amount of airport capacity elsewhere in the South East. So, in practice, the extent of development at Luton and any requirement for additional land to facilitate it will be affected by decisions about those other airports. Increased use of the airport might, for example, be based on the existing runway alignment."
Apart from this revision (and one other minor alteration), Chapter 10 of the Consultation Document dealing with Luton was not altered between the first and the second editions.
"the following amendments:
- The inclusion of Gatwick options in the consultation process
- Further clarification of the term maximum use with respect to Luton
- Further clarification that increased use at Luton could be based on the existing runway alignment (and extension)".
"In SERAS 2 (February 2003), Government took the opportunity to provide further clarification with respect to runway provision at Luton, stating:
'Increased use of the airport might, for example, be based on the existing runway alignment'.
In our view, subject to further detailed appraisal, Government should consider the runway extension option (Option 1, SERAS: Airport Optioneering, Final Report, February 2002) for delivering maximum use at Luton."
"Briefly, the new document appears to introduce a new option for Luton of simply extending the existing runway, but fails to follow that through with an indication of its consequences (throughput and environmental), nor include it in the questionnaire. We feel that if this exercise is to remain a true public consultation, this surely requires an extension of the consultation deadline in order to give those affected the opportunity to comment on that idea.
To elaborate, since the Consultation Documents were re-issued in February 2003 it has become increasingly clear to LADACAN that no one understands what precisely is meant by the addition to paragraph 10.6 of the words, "Increased use of the airport, might for example, be based on the existing runway alignment." We have had to guess that the DfT means that the existing runway could be extended as an alternative to building a replacement runway, but it seems quite wrong to require consultees to approach these already complex documents as if they were a cryptic crossword. The general public is left as much in the dark as they were by the original document, which effectively hid the proposals for a massive, five-fold expansion of Luton Airport.
It is a crucial point because [the] background reports to SERAS show that an extension to the existing runway could increase Luton Airport's capacity by almost as much as a replacement runway. The effects on the surrounding region would be thereby just as damaging.
We look forward to Mr Darling's response and will take careful note of any reasons he may care to put forward as to why the consultation may not be extended to rectify this shortcoming."
"I would like to assure Dr Davis, that every effort was made to make the text clear in the second edition of The Future Development of Air Transport in the United Kingdom Consultation Document. Indeed, where it had become evident that clarification of the text in the first edition would be helpful, the text was expanded. This was explained in the Introduction to the second edition of the Consultation Document.
I am sorry if Dr Davis considered paragraph 10.6 of the second edition to be misleading. However, I do not agree that there was any need to extend the consultation period.
Question 10 in the second edition of the Questionnaire referred clearly to the two options at Luton – a new southern runway and a realigned runway.
The Consultation Document itself emphasised that it was an open consultation. Comments were not only invited on the options put forward. We invited views on the following broader questions:
- Should new airport capacity be provided in the South East over the next 30 years and, if so, how much?
- Where should any additional capacity be provided?
- What controls, mitigation measures and compensation should be put in place to limit and manage the adverse impacts of any additional airport development on people and the natural and built environment?
The Consultation Document provided a commentary on the key issues.
The consultation closed on 30 June. We will consider LADACAN's main consultation response carefully, along with other responses, before decisions are taken. We plan to publish the White Paper later this year.
I hope this is helpful."
"with regard to LLAOL's proposals for the future development of Luton airport a number of variant proposals at existing sites and proposals for new airport capacity at sites which were not included in the Government's Consultation Document have been submitted as responses to the consultation. These are being considered. If the Government was minded to favour any of these options it would be necessary to consult separately on them."
"11.84 Luton currently handles about seven million passengers per annum, and is growing steadily towards its current planning limit of 10mppa. Forecasts suggest that there would be sufficient demand to justify expansion of Luton to the full potential of a single runway – say about 30mppa and 240,000 ATM's – in the period up to 2030, even with two new runways at other South East airports.
11.87 The Consultation Document included two options for a replacement runway at Luton. One of these involved moving the runway to a NNE – SSW alignment and extending it. The other option that was put forward was for a replacement full-length runway to the south and on the same alignment, with the latter used as a taxiway…"
Having discussed the realigned runway option, paragraph 11.87 concluded "On balance there does not appear to be a compelling argument for this option and we do not support it."
"11.88 There is a stronger case for the southern replacement runway option. The airport operator does not favour that option and proposes instead to lengthen the existing runway and taxiway. The second edition of the South East Consultation Document acknowledged the possibility of such an alternative. (emphasis added)
11.89 The Government supports the growth of Luton up to the maximum use of a single full-length runway based broadly on the current alignment, on condition that the overall environmental impacts of such development will be carefully controlled and adequate mitigation provided. We believe that growth should be subject to stringent limits on the area affected by aircraft noise, with the objective of incentivising airlines to introduce the quietest suitable aircraft as quickly as is reasonably practicable. The limits should look ten years ahead, and will need to be reviewed at intervals between now and 2030 to take account of emerging developments in aircraft noise performance. We note that the airport operator's proposed single-runway solution may be a more cost-effective approach than the consultation option, and that less land outside the current boundary might be required.
11.90 The two maps below reproduce that shown in the Consultation Document for the option of a replacement runway to the south of the existing runway as well as the airport operator's alternative proposal."
"The White Paper does not pretend that the Consultation Paper proposed as an option the extension of the existing runway along its current alignment. Moreover, the White Paper expresses no policy support for the airport operator's proposal that the existing runway be extended. In fact, paragraph 11.89 of the White Paper expresses the Government's support for –
'the growth of Luton up to the maximum use of a single full-length runway based broadly on the current alignment, on condition that the overall environmental impacts of such development will be carefully controlled and adequate mitigation provided'
The White Paper does no more than to 'note' the airport operator's proposed single runway solution and its possible advantages in terms of cost and land-take. Thus, insofar as the White Paper expresses any policy support for runway development at Luton, it is essentially for an approach which reflects the second of the 2 options consulted upon (i.e. a full length runway on the existing alignment). Its stance in relation to the airport operator's proposal for achieving that by extending the existing runway itself is essentially neutral. The Claimants' complaint that the White Paper has adopted a policy of support which was not consulted upon is thus based on an incorrect understanding of the facts."
"the White Paper supports the growth of Luton up to the maximum use of a single full-length runway based broadly on its current alignment. The White Paper shows two possible means of achieving that without expressing a preference between them. It will therefore be for the airport operator to bring forward a proposal for the expansion on an application for planning permission and to justify its preference in relation to impacts... There will be public consultation on such a proposal in accordance with the applicable development control procedures."
"107. The White Paper explained that Ministers had decided that, based on the evidence, there was a stronger case for the southern replacement runway option rather than the realigned runway. They therefore supported the growth of Luton up to the maximum use of a single full-length runway based broadly on the current alignment.
108. Ministers were aware of LLAOL's responses to the consultation. LLAOL were critical of the southern and realigned runway options and proposed a variant option which comprised of an extension to the existing single runway to 3000m and the creation of parallel taxiways.
109. Ministers recognised that the airport operator's proposed single runway solution might be a more cost effective approach than the consultation option and offered other potential advantages. For example, that less land outside the current boundary might be required.
110. The White Paper however, did not express a preference between the southern replacement runway consultation option and the airport operator's own option for maximum use. Maps of both options were published in Chapter 10 of the White Paper. It is for the airport operator to decide how to take forward plans for airport expansion and accordingly submit a planning application providing full details of their proposal."
"1.188 The proposition put forward for Luton in the South East consultation document was that maximum use should be made of a single runway, either to the south of the existing runway (which would become part of a full length parallel taxiway), or realigned on a north east – south west axis, broadly comparable to the Stansted runway alignment."
Paragraph 1.190 stated:
"A large number of respondents commented on the possibility of making maximum use of the existing runway rather than on the options consulted on."
This does not make it clear whether the possibility of making "maximum use of the existing runway" is a reference to LLAOL's proposal for an extension of the existing runway.
"86 respondents commented on the alternative possibility of increased runway capacity from the existing runway, which in essence would require the addition of improved taxiway provision and rapid exit taxiways and other airfield improvements. 64 respondents expressed support for this approach, with 27 of these respondents not commenting on either side of the consulted options."
This summary does not suggest that these respondents were commenting on LLAOL's proposal to extend the existing runway. One would have thought that such a proposal would be described as a "runway extension" and not as an "other airport development". The responses to the second Questionnaire were separately analysed by NOP. As mentioned above (para 179) the questions in that Questionnaire were confined to the two options mentioned in the second Consultation Document.
"In principle we recognise the force of these arguments and suggest that the operator should carry out further work on proposals for terminal capacity and an appraisal of the impacts, on the basis of which a further consultation would be required."
(1) While policy support for the development of a second runway at Stansted as the first new runway in the South East was a fair outcome of the consultation exercise, the statement that it "would be the wide spaced runway option presented in the Consultation Document" was not. Having regard to the basis on which the consultation exercise was conducted and the role of the Government policy in the planning and EIA process the final sentence of paragraph 11.40 of the White Paper was, to mix the transport metaphors, "A bridge too far".
(2) The White Paper could fairly support the growth of Luton up to the maximum use of a single full-length runway, but it unfairly managed to convey the impression that LLAOL's proposal to extend the existing runway at Luton had been consulted upon, and that it (in addition to the southern runway option) was supported in policy terms, when fairness required a clear acknowledgement that since it had not been consulted upon, any decision as to whether or not it should have policy support would have to be the subject of full consultation.