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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> London Borough of Wandsworth & Ors, R (on the application of) v Secretary of State for Transport [2005] EWHC 20 (Admin) (18 February 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/20.html Cite as: [2005] EWHC 20 (Admin) |
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CO/1339/2004 |
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice Strand, London, WC2A 2LL |
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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 |
Claimants |
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- and - |
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| Secretary of State for Transport |
Defendant |
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| - and - |
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| (1) London Luton Airport Limited (2) BAA Plc (3) Stansted Airport Limited (4) Heathrow Airport Limited |
Interested Parties |
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| And Between: |
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| (1) Essex County Council (2) Uttlesford District Council (3) Hertfordshire County Council (4) East Hertfordshire District Council (5) North Hertfordshire District Council |
Claimants |
|
| -and- |
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| The Secretary of State for Transport |
Defendant |
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| -and- |
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| (1) Stansted Airport Limited (2) London Luton Airport Limited (3) BAA Plc |
Interested Parties |
____________________
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
Hearing dates: 13th – 21st December 2004
____________________
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 :
Introduction
(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
- Ensure that airport development is properly linked in to our wider transport strategy and to our other transport networks."
"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."
Airports Policy
SERAS
"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."
Justiciability
" "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.
Heathrow
"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:
- we support making best use of the existing runway at Stansted and development to its full use of a single runway at Luton;
- we support the provision of two new runways in the South East in the thirty year period to 2030;
- we do not believe that there is a strong case for attempting to create a second hub airport in the South East;
- 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;
- 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);
- 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;
- 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;
- 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;
- 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;
- 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
- we support, in principle, development of smaller airports in the South East to meet local demand subject to relevant environmental considerations; and
- 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 [2001] 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".