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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)
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Cite as: [2005] EWHC 20 (Admin)

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Neutral Citation Number: [2005] EWHC 20 (Admin)
Case Nos: CO/1314/2004,
CO/1339/2004

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

CO/1339/2004
Royal Courts of Justice
Strand, London, WC2A 2LL
18th February 2005

B e f o r e :

THE HONOURABLE MR JUSTICE SULLIVAN
____________________

Between:
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

- and -


Secretary of State for Transport
Defendant

- and -


(1) London Luton Airport Limited
(2) BAA Plc
(3) Stansted Airport Limited
(4) Heathrow Airport Limited





Interested Parties



And Between:



(1) Essex County Council
(2) Uttlesford District Council
(3) Hertfordshire County Council
(4) East Hertfordshire District Council
(5) North Hertfordshire District Council
Claimants
-and-

The Secretary of State for Transport
Defendant
-and-

(1) Stansted Airport Limited
(2) London Luton Airport Limited
(3) BAA Plc
Interested Parties

____________________

Mr David Smith (instructed by Richard Buxton Solicitors) for the Claimants
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

____________________

HTML VERSION OF JUDGMENT
____________________

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. The Claimants in these two applications for judicial review challenge the lawfulness of certain decisions contained in the White Paper "The Future of Air Transport" presented to Parliament by the Defendant in December 2003.
  2. The London Boroughs seek a quashing order in respect of the whole of Chapter 11 of the White Paper which deals with airports policy in The South East of England. Essex / Herts seek a quashing order in respect of the following policies in Chapter 11:
  3. (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).
  4. For convenience I have called the Claimants in the first application "the London Boroughs". The two London Boroughs are members of SASIG. Heathrow is situated within the London Borough of Hillingdon. Anne Hardy lives in Richmond and is a member of HACAN Clear Skies, which represents the interests of residents under the Heathrow flight paths. Roger Wood lives near Luton and is a member of LADACAN. Norman Mead lives near Bishops Stortford and is Chairman of SSE, which co-ordinates the efforts of local communities to limit the expansion of Stansted.
  5. The five local authority Claimants in the second application will all be affected directly or indirectly by the proposals for Stansted and Luton. Stansted is situated within Uttlesford District Council. The runway at Luton extends to the Herts border.
  6. Although the Claim Forms contained a large number of grounds (12 in the first application, and 7 in the second) a number of these grounds were not pursued in the light of the evidence filed on behalf of the Defendant, and others were alternative formulations of the same underlying complaint.
  7. In summary, the London Boroughs submitted that the Defendant acted unfairly in adopting in Chapter 11 of the White Paper policies which were not foreshadowed in the second Consultation Document. Essex / Herts submitted that the final sentence in paragraph 11.40 of the White Paper was unfairly prescriptive in the light of the consultation exercise. Both groups of Claimants submitted that there was no rational basis for the Defendant's conclusion that the construction of a first new runway at Stansted (to be followed by a new runway at Heathrow) would be commercially viable. Both groups of Claimants further submitted that since the Defendant did not consult upon LLAOL's proposal that the existing single runway at Luton should be extended, the White Paper could not fairly give that proposal any policy support.
  8. Before considering these submissions in detail it is necessary to explain the background to the publication of the White Paper.

    Background: National Planning Policy

  9. The lengthy delays in reaching decisions on major infrastructure projects have long been recognised as one of the weaknesses of the planning system. This was one of the issues considered in the Ministerial Planning Statement "Modernising Planning" which was published by the DETR in January 1998. The Statement said:
  10. "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."
  11. In May 1999 the DETR published a consultation paper "Streamlining the Processing of Major Projects through the Planning System". This said in paragraphs 4 and 5:
  12. "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."
  13. Under the heading 'Deciding the Procedures' paragraph 12 said this:
  14. " '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.

  15. The Consultation Document said this about 'Statements of National Policies':
  16. "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."
  17. When dealing with 'Improving Public Inquiry Procedures' the Consultation paper stated in paragraphs 29 and 30 that terms of reference and timetables could be set for inquiries into major infrastructure projects.
  18. Annex A explained 'The need for change' in these terms:
  19. "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"
  20. These proposals were repeated in the Green Paper "Planning: delivering a fundamental change", published by the DTLR in December 2001, and confirmed as policy in the statement "Sustainable Communities – delivering through planning", published by the ODPM in July 2002. They were also referred to in paragraphs 230 – 232 of the DETR's consultation document "The Future of Aviation" (December 2000):
  21. "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:
  22. Pausing there, whilst both groups of Claimants disagree with the content of the policies in the White Paper, they have no quarrel with the proposition that national policy guidance should be issued in respect of major projects such as airport developments, and that such statements of policy will inform, and should therefore serve to reduce the length of, planning inquiries into proposals for such development. However, they submit that if issues are to be regarded as 'settled' so that inquiry time is not to be 'wasted' by going over them, it is essential that the process whereby those issues are settled is both fair and proportionate to the level of detail that is 'settled' by the policy. Otherwise, they contend, there is a danger that the statutory procedures of environmental impact assessment followed by thorough examination of all material considerations at a public local inquiry will have been unfairly pre-empted by an inadequate decision making process for national policy. The concern of Essex / Herts is perhaps best expressed by Herts County Council in the Summary of its response to the second Consultation Document:
  23. "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

  24. Prior to the December 2003 White Paper the last complete statement of Government policy on airports was contained in the White Paper "Airports Policy" published on the 5th June 1985. In 1990 the Government set up the Runway Capacity to Serve the South East (RUCATSE) Working Group. The report of the Working Group "Runway Capacity to Serve the South East" was published in July 1993 and was followed by a period of public consultation. However, in February 1995 the Government announced that BAA should not take forward the options presented by RUCATSE for runway development at Heathrow or Gatwick and asked BAA to do further work to establish whether there might be less environmentally damaging alternatives such as a close-parallel runway at Gatwick.
  25. In May 1996 the Transport Select Committee of the House of Commons published a report on "UK Airport Capacity". The Committee recommended that, inter alia, the Government should produce a new White Paper setting out a framework for airports policy. Such a document would examine whether, and how, future demand for airport capacity should be met looking forward 30 years. The then Conservative Government broadly accepted that recommendation in its response of the 12th July 1996, but noted that "there are very great uncertainties in attempting to look more than 20 – 25 years ahead".
  26. In its White Paper "A New Deal for Transport: better for everyone" published on the 20th July 1998, the new Labour Government announced its intention to prepare a statement on UK airports' policy looking 30 years ahead in accordance with the recommendations of the Select Committee. "This will develop the application to UK airports of the policies set out in this White Paper of sustainable development, integration with surface transport and contribution to regional growth". It also announced a series of studies of airports and air services in South West England, Scotland, Wales, Northern Ireland, the Midlands and the North of England.
  27. SERAS

  28. On the 11th of March 1999 the then minister for transport (Dr John Reed) announced that the Government intended to commission a study of airports and air services in the South East and East of England (SERAS). This study would complement the 6 regional studies announced in the 1998 White Paper.
  29. A wide range of options would be considered and their environmental, economic and social implications appraised. Ministers made it clear that the starting point of SERAS was that nothing was ruled in or out. It was intended that the study would take 2 years to complete and would be followed by public consultation. Ministers undertook to consult key stakeholders about the criteria to be used to assess options. It was envisaged that the results of the UK wide studies would be incorporated into a White Paper.
  30. The Government consulted on draft terms of reference for SERAS in September 1999. More than a thousand copies of the draft terms were distributed to individuals and organisations. Around 250 commented on the draft. Also in September 1999 a consortium of consultants led by Baker Associates was commissioned to develop an airports appraisal framework as envisaged in the draft terms of reference. Scott Wilson Kirkpatrick were appointed in October 1999 to carry out a preliminary search of potential sites (both existing and new) for new airport capacity to serve the South and South East of England.
  31. An external reference group embracing a wide range of interested organisations was set up to validate the study process. The group met for the first time in November 1999. It commented upon the draft terms of reference for SERAS, and the terms of reference were published in their final form in February 2000. In addition to the terms of reference, a draft appraisal framework for airports in the South East and Eastern Regions of England (SEAAF) was published for consultation.
  32. Following consultation, the final version of SEAAF was published in November 2000. It explained that the overall decision making process would involve a number of stages; sift 0, a preliminary site search; sift 1, identifying one or two preferred options at each site; sift 2, intermediate appraisal of packages of site specific options to provide a given level of capacity as well as packages offering different levels of capacity; and sift 3, detailed appraisal of a shorter list of preferred packages (including no development beyond that already envisaged in the land use planning system).
  33. Paragraph 5.9 stated that:
  34. "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."
  35. Paragraph 5.16 said:
  36. "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."
  37. Earlier in the document paragraph 5.4 had explained:
  38. "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."
  39. Paragraph 5.7 stated that the assessment of a scheme based on the relevant indicators (which were set out in a table) should be summarised in an appraisal summary table (AST). The AST would be "an aid to decision makers, setting out all the significant consequences of a policy option concisely so as to provide decision takers with a clear and reliable basis for their decisions. Any weights used in comparing the assessments against the various indicators rest with the decision taker".
  40. The key element of SERAS Stage 0 was the preliminary site search conducted by Scott Wilson Kirkpatrick. From an initial list of around 400 sites, some 30 potential sites were identified and appraised against a range of criteria. The best performers were short-listed and appraised further. To cut a long story short, in July 2000 it was decided that Cliffe was the most promising option for a major new passenger airport, to set alongside the options for expansion at the existing airports.
  41. SERAS Stage 1 started in June 2000. The principal focus of this stage was to develop and appraise options for capacity enhancement at individual existing airports and at the new sites. Eventually more than 60 options were appraised at Heathrow, Gatwick, Stansted, Luton and Cliffe. At this stage each airport was considered in isolation. No attempt was made to consider how options at different airports might interact with each other or to make comparisons between different airports.
  42. In August 2000 Ministers decided the arrangements for making public the detail of options considered in the study. They decided to consult only on the final short-list of options arising from the study and not to consult upon the very many options which would be considered at the intermediate stages. They did so, principally, because they recognised that releasing site specific information at intermediate stages would result in unnecessary and lengthy anxiety and controversy, not least because there would be relatively little hard information available at that stage to judge the relative merits of options until the more detailed appraisal in the later stages of the study had been completed. Thus earlier consultation would have had the potential to result in very extensive blight.
  43. Stage 1 of SERAS took longer than expected to allow a wider consideration of individual development options than had originally been envisaged. This also allowed time to develop more complex modelling tools for use in Stage 2. As a result of the longer programme, in March 2001 Ministers agreed to a revised study timetable that included combining stages 2 and 3 into a revised Stage 2. Since it had been decided that there would be no public consultation until the later stages of the study had been completed, this decision, and other decisions made prior to the publication of the first Consultation Document in July 2002, were not made public.
  44. In his first Witness Statement, dated 17th September 2004, Mr Fawcett (who was head of the airports policy division within the DfT from September 1996 until January 2004, during which time he was responsible for providing advice to Ministers on Government policy with regard to the development of airports in the United Kingdom) explained that decisions based on the findings of Stage 1 were taken by Ministers in July 2001. Ministers were invited to select the most promising development options at each airport or new site to take forward for more detailed appraisal in Stage 2 of the study. Ministers were also invited to agree how the options at the major locations might be grouped into packages or combinations of development at one or more airports providing different amounts of total capacity by 2030 for further appraisal. Mr Fawcett said that when reaching their decisions Ministers had been advised of the "broad nature of the assessments in Stage 1 and in particular, the lack of detailed information about noise and air quality impacts". Ministers agreed that 22 packages of airport development should be studied in Stage 2.
  45. In November 2001 the DfT's consultants, Halcrow, reported the findings of the Stage Two studies in the "Stage Two Appraisal Findings Report". The Report contains over 500 pages of text and tables and 280 separate figures.
  46. Following the end of Stage Two, the DfT's SERAS consultants were commissioned to undertake a number of sensitivity tests (taking account of alternative assumptions) and to consider some refinements of options and packages appraised in Stage Two. One refinement was the development of an alternative (wide-spaced) single new runway option at Gatwick. The results of this work were set out in a supplementary report referred to as the Stage Three Report.
  47. The Stage Two and Stage Three Reports were considered by Government between December 2001 and June 2002. The Government examined the benefits and disadvantages of each of the options and packages as described in the Stage Two and Stage Three Reports. Mr Fawcett explained that in the process of selecting the final short-list two general considerations had to be balanced against each other. Firstly, it was considered desirable to offer in the consultation a range of options in respect of both the total amount of runway capacity and the location of that capacity; and secondly it was also considered desirable to focus the consultation on a limited number of options so as to keep to a minimum the number of locations at which people would suffer uncertainty and anxiety in the period between the publication of the Consultation Document and the publication of the White Paper.
  48. The first Consultation Document

  49. The first Consultation Document was published on the 23rd July 2002. It was accompanied by a summary document and a questionnaire designed by NOP. Alongside the publication of these documents, the department published 65 technical reports which had been produced as part of the SERAS study or which had otherwise informed the decision making process for the consultation. These documents were listed in Annex C to the first Consultation Document.
  50. The first Consultation Document was challenged in judicial review proceedings upon the basis that it did not include any option for new runway capacity at Gatwick. SERAS had not excluded Gatwick options, and had indeed considered options for extra runway capacity there. Until publication of the first Consultation Document there had been no indication from the DfT that further consideration of Gatwick options was to be excluded.
  51. On the 26th of November 2002 in R (on the application of Medway Council, Kent County Council, Essex County Council and Mead and Fossett) v. Secretary of State for Transport [2002] EWHC (Admin) 2516, [2003] JPL 583 ("the Medway Case"), Maurice Kay J as he then was, allowed the applications upon the basis that the decision to exclude Gatwick options from the consultation process was irrational and / or unfair. The Secretary of State did not appeal against that judgement, but made a statement in Parliament on the 28th November 2002 that the Government would publish a further consultation paper that would include options in relation to Gatwick.
  52. The second Consultation Document

  53. The second Consultation Document was published on the 27th February 2003, and the closing date of the consultation exercise was extended from 30th November 2002 to 30th June 2003. The DfT distributed over 125,000 copies of the South East Consultation Document and 190,000 South East summary documents during the consultation period. A second edition of the NOP Questionnaire was also distributed. The DfT received over 500,000 responses to the consultation exercise: some were detailed submissions, there were many thousands of individual letters, and over 66,000 completed NOP questionnaires were received by the Department.
  54. In the Introduction to the Second Edition the DfT referred to the publication of the first Consultation Document and to the High Court's decision in November 2002. The Introduction stated that the structure and most of the content of the second Consultation Document were essentially the same as the first Consultation Document. The main difference was the inclusion of the options for new runways at Gatwick. The Introduction said:
  55. "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".
  56. The new text was helpfully identified by magenta type. The final paragraph of the Introduction stated:
  57. "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".

  58. Chapter 1 provides an executive summary of the Consultation Document. The introduction is as follows:
  59. "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:
    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.

  60. Annex B described SERAS. Under the heading 'The Appraisal Framework' it said:
  61. "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)
  62. Annex C listed the many documents comprising SERAS and other useful supporting documents. In the main body of the Consultation Document a separate chapter was devoted to each of the airports: Heathrow, Gatwick, Stansted, Luton and Cliffe. Chapter 14 described the various combinations of airport options. Table 14.3 listed 25 possible combinations, giving the capacity of, and anticipated traffic at, each of the options in 2030. In order to avoid repetition I will deal with those passages in the second Consultation Document which specifically refer to Stansted, Heathrow and Luton when considering the Claimants' cases in respect of those airports.
  63. The White Paper was presented to Parliament by the Defendant in December 2003. Paragraph 1.8 said:
  64. "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.

  65. I have described the SERAS study and the consultation process in some detail because, in considering the force of the Claimants' criticisms of the policies in Chapter 11 of the White Paper, it is important to appreciate that the White Paper and the Consultation Document are but the tip of a very large iceberg. To the best of my knowledge, the scale of SERAS and the extent of the consultation exercise are unprecedented in the planning field. Those who criticise the outcome must acknowledge that, in terms of process, this was a serious attempt to grapple with the immensely difficult problem of devising an airports policy for the South East of England.
  66. Paragraph 19.3 of the Consultation Document rightly said that:
  67. "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

  68. It is helpful to outline the role of Government policies, such as those contained in the White Paper, in the development control process. The starting point is section 70(2) of the 1990 Act. When dealing with a planning application, the decision taker (whether the Secretary of State or a local planning authority)
  69. "shall have regard to the provisions of the development plan so far as material to the application and to any other material considerations".
  70. Other material considerations include statements of Government policy: see paragraph 52 of PPG1. The role of the development plan in decision making was enhanced by section 54A (added by the Planning and Compensation Act 1991):
  71. "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"
  72. What constitutes the development plan for an area has been changed by the 2004 Act. Under the previous system, in non-metropolitan areas the development plan usually comprised the Structure Plan prepared by the County Council and the Local Plan prepared by the District Council. In some areas there is a Unitary Development Plan. Authorities preparing Structure Plans were required in formulating their general policies to have regard to various matters including:
  73. "(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).

  74. Under the 2004 Act the development plan outside Greater London is the RSS for the region in which the area is situated and the development plan documents (LDDs) taken as a whole which have been adopted or approved in relation to that area. The 2004 Act prescribes the matters to which regional planning bodies and local planning authorities are required to have regard in preparing RSSs and LDDs respectively.
  75. Section 1 (2) of the 2004 Act states that "the RSS must set out the Secretary of State's policies (however expressed) in relation to the development and use of land in the region". Section 19(2) states that "in preparing a local development document the local planning authority must have regard to (a) national planning policies…(b) the RSS for the region in which the area of the authority is situated…". Section 24(1) requires that "the local development documents must be in general conformity with the RSS".
  76. The significance of the development plan in the development control process is maintained by Section 38(6) of the 2004 Act, which replaces s54A of the 1990 Act (now repealed), and which states that:
  77. "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".
  78. It will be seen that one of the effects of these amendments will be to give added formal status to statements of Government policy, such as the White Paper. They will cease to be one of the "other material considerations" to which regard must be had in development control decisions or in the formulation of development plan policy, and will instead be incorporated into the RSS (with which the LDDs must be in general conformity) which will itself be part of the development plan, and will thus be given added weight in the determination of any planning application by virtue of section 38(6).
  79. The 2002 Rules which came into force on the 7th June 2002 prescribe the procedure for public local inquiries relating to major infrastructure projects, such as airport developments. They amend the "normal" procedure rules (which are contained in the Town and Country Planning (Inquiries Procedure) (England) Rules 2000) to take account of the particular characteristics of inquiries into such projects. For example, rule 8(1) provides that the Inspector must propose a timetable for the proceedings at such an inquiry at the pre-inquiry meeting. That timetable must be approved by the Secretary of State and may not be varied by the Inspector without the Secretary of State's approval (rule 8(2)). In addition to the normal power to refuse to permit irrelevant or repetitious cross-examination, rule 17(7) provides that "the Inspector may refuse to permit the cross-examination of persons giving evidence or may require such cross-examination to cease, if it appears to him that permitting such cross-examination or allowing it to continue (as the case may be) would have the effect that the timetable referred to in rule 8(2) could not be met".
  80. DTLR Circular 02/02 explains the new procedures. Paragraph 2 of the Circular states that the new procedures were "part of the package of measures announced by the Secretary of State on 20th July 2001 to streamline the processing of major infrastructure projects through the planning system".
  81. "3. In summary the package comprised:
    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".
  82. The role of Government policy statements in this new statutory framework was explained by Mr Ash, the Deputy Director and Chief Planner in the Town and Country Planning Directorate in the ODPM, in a witness statement dated 16th September 2004, served on behalf of the Defendant.
  83. "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

  84. In the Medway case it was submitted on behalf of the Defendant that the challenge to the first Consultation Document raised "matters of such high policy" that they were "challengeable only on the basis of bad faith". That submission was rejected by Maurice Kay J, who concluded (para 18) that the decision not to include Gatwick options in the first Consultation Document was "reviewable on traditional judicial review grounds" although he accepted that they had to be approached with "particular care".
  85. In his Summary Grounds of Defence it was submitted on behalf of the Defendant that the White Paper was not amenable to judicial review: the Defendant was answerable to Parliament for the policies in the White Paper, but not to the Court. This position was not maintained in the Defendant's Detailed Grounds. It was no longer contended that the White Paper was not in principle amenable to judicial review, rather it was submitted that there was a spectrum of decisions, ranging from answers to questions of primary fact, where the Court would be as well equipped to answer the question as the decision-taker, to questions of political and economic judgement, where the Court's approach to judicial review would acknowledge that it was singularly ill-equipped to answer such questions: see R (Javed) v. Secretary of State for the Home Department [2001] EWCA Civ 789, [2002] QB 129, paragraphs 47 – 50. Where a decision is based upon the evaluation of political or economic considerations there will be a heavy evidential onus upon a claimant for judicial review to establish that such a decision is irrational, absent bad faith or "manifest absurdity". It was submitted on behalf of the Defendant that the policy decisions in the White Paper were very much at the latter end of the spectrum.
  86. Subject to their submissions as to the fairness of the process, the Claimants did not dissent from the generality of this proposition and accepted that certain policy decisions in the White Paper, for example the decision that the first priority was to make the best possible use of existing runways, fell at the latter end of the spectrum. However, they submitted that within the White Paper itself there was a spectrum of decisions ranging from the broad proposition in paragraph 2.18 that "A balanced and measured approach to the future of air transport is needed", which could not sensibly be challenged, to the particular, that the new runway at Stansted "would be the wide-spaced runway option presented in the consultation document", which was challenged as being unduly prescriptive (see "Stansted" below).
  87. The existence of such a spectrum in the context of public inquiries into proposals to build new motorways was recognised in the speech of Lord Diplock in Bushell v. Secretary of State for the Environment [1981] AC 75, at page 98B-H:
  88. " "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

  89. Heathrow needs no introduction. As the White Paper said in paragraph 11.47:
  90. "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.

  91. In a White Paper issued in 1978 before the start of an inquiry into BAA's proposal for a fourth terminal at the airport, it had been stated that Heathrow's ultimate development would be limited to not more than four terminals. The Inspector at that inquiry, Mr (later Sir) Iain Glidewell commented in paragraph 4.1.17 of his report:
  92. "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.

  93. As time moved on, so the ATMs at Heathrow continued to grow: from about 221,000 in 1982 to approximately 419,000 by the time Mr Vandermeer started his inquiry. When describing the current situation paragraph 7.1 of the Consultation Document said:
  94. "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".
  95. Planning permission was granted for the fifth terminal in November 2001. Paragraph 7.2 of the Consultation Document explains that the permission was subject to:
  96. "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".
  97. The White Paper's proposals for Heathrow must be considered against the Government's "main conclusions" in Chapter 11 which were as follows:
  98. "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:

    [I have numbered the bullet points in paragraph 11.11 for ease of reference]

  99. When discussing Heathrow, the White Paper noted that "the demand for Heathrow is extremely strong (11.48)", and that "additional capacity at Heathrow would generate the largest direct net economic benefits of any new runway option" (11.50).
  100. Paragraph 11.51 stated:
  101. "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.

  102. Against this background, the Government's policies for Heathrow were set out in more detail in paragraphs 11.61 – 11.67, as follows:
  103. "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."
  104. Although the London Boroughs profoundly disagree with these policies they accept that in these proceedings the Court is not concerned with the merits of the policies set out in the White Paper. Their central complaint was encapsulated in paragraph 1.2 of their skeleton argument:
  105. "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.

  106. The relevant authorities on the need for re-consultation were helpfully considered by Silber J in Smith v. East Kent Hospital NHS Trust & another [2002] EWHC 2640 (Admin), [2003] 6 CCLR 251. It is clear from those authorities that what fairness requires in any particular case is bound to be a matter of degree. As Silber J said in paragraph 43:
  107. "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."
  108. In paragraph 45 he said:
  109. "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…)"
  110. In summary, the Defendant's position is that there was no fundamental change in the landscape between the second Consultation Document and the White Paper. The landscape in Chapter 11 of the White Paper had essentially the same topography as the landscape about which the public had been consulted.
  111. Against this background, I turn to the alleged changes in the landscape. The London Boroughs contend that the landscape in the second Consultation Document contained five "main identifiable and linked elements" namely:
  112. (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.

  113. I will deal with each of these elements of the landscape in turn. Although it is necessary for the purposes of analysis to deal with them separately, I bear in mind Mr Smith's submission on behalf of the London Boroughs that the issues are inter-linked, and that it is their cumulative impact which must be considered in deciding whether there was a fundamental change in the landscape.
  114. (1) The Hub Aspect

  115. The London Boroughs contend that in the second Consultation Document the Defendant was actively focussing his attention on the postulated need for a further hub airport. They rely upon, inter alia, paragraph 2.20 which discussed "the benefits of hub airports", and on paragraphs 4.1 and 4.2 in Chapter 4 which, under the heading 'A Hub Airport in the South East', said:
  116. "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:
    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."
  117. Under the heading 'Does the UK need one or more large hub airports in the South East?' the benefits of hub airports were further discussed in paragraphs 4.8 – 4.10. Under the heading 'Alternatives to Heathrow' paragraph 4.19 stated (in part):
  118. " 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…"
  119. Paragraph 4.20 discussed the implications of an entirely new airport at Cliffe which "could be designed from the outset to be suitable for hub operation". Paragraph 4.21 discussed the expansion of Stansted into a major hub airport. Paragraph 4.22 said:
  120. "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…"
  121. Under the heading 'Two large airports in the South East?' paragraph 4.23 stated that "the underlying demand that we are forecasting by 2030 would be large enough to support two large airports. Another possible approach might therefore be to expand Heathrow and also to develop a second South East airport into a hub." Paragraph 4.24 noted that "Heathrow, even with a new runway, would not be large enough to support the hub operations of two alliances; so one alliance would need to shift to another airport."
  122. In Annex A question 2 asked: "Should the Government aim to maintain at least one large hub airport in the South East? Is a second hub plausible, and if so, should Government seek to promote one, and what would it need to do to achieve this?" Question 8 asked: "If you think either Gatwick, Cliffe or Stansted should be developed as a hub airport, should the Government take action to ensure such development can be financed and subsequently fully utilised and if so what form should any action take?"
  123. Question 5 in the second questionnaire asked respondents to indicate: "To what extent do you agree or disagree with the following statement: our future UK airports' policy should, in principle, provide for at least one major hub airport in the South East". Question 6 said: "Listed below are some possible reasons for maintaining at least one hub airport somewhere in the South East, please indicate how important you feel each of these are." Various reasons were set out including, for example, "to benefit UK air travellers by providing a wider range of destinations and more frequent services than a smaller airport".
  124. Pausing there, it was, or should have been, plain from these questions that the Defendant was not postulating that there was a need for a further hub airport in the South East. He was expressly asking whether there was such a need, and if so, how it should be met.
  125. The White Paper answered these questions in paragraphs 11.12 – 11.17:
  126. "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."
  127. I do not accept that this represents any change in the "landscape" presented in the second Consultation Document, much less a fundamental change. The Consultation Document did not proceed upon the basis that there was a need for a further hub airport. Rather, it stated that the question – "Does the UK need one or more major hub airports in the South East?" – was one of the "two fundamental issues that the Government wishes to address" (see para 4.1). The second fundamental issue was "should we develop Heathrow further?" Paragraph 4.2 recognised that those two questions were closely linked and that it would be necessary to consider what the benefits were to the United Kingdom of having a strong hub airport, and if maintaining a hub airport was a desirable objective, whether the best way to achieve that objective would be to "maintain Heathrow's role as our premier airport". The remainder of Chapter 4 asked, "does the UK need one or more large hub airports in the South East", discussed the question "should we develop Heathrow further", and discussed alternatives to Heathrow.
  128. Against that background it was, or should have been, obvious to the London Boroughs that a possible, if unwelcome, response to the two fundamental questions posed in paragraph 4.1 would be that Heathrow should be developed further, and that a major new hub airport should not be developed. Indeed, the London Boroughs acknowledge that among the consultation responses there were those (including LLAOL) who argued that undue emphasis had been placed on the need for one or more hub airports. In its response, British Airways had said bluntly that "the Government has not made the case for a new hub airport". The London Boroughs had been able to make representations to the contrary.
  129. Although the response to this issue in the White Paper is most unwelcome to the London Boroughs, it could easily have been foreseen as a possible outcome of the consultation process. There was no change in the landscape.
  130. (2) The Radical Change

  131. This issue is inextricably linked to issue (1) above. The only "radical change" discussed in the second Consultation Document was the possibility that a new purpose-built hub airport might be developed in the South East as an alternative to developing Heathrow further. The SERAS reports had identified Cliffe as the most promising option for a new hub airport. Cliffe was discussed in Chapter 11 of the second Consultation Document.
  132. By way of introduction paragraphs 11.1 – 11.3 described the proposal and the reasons for its choice.
  133. "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:
    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."
  134. The options considered at Cliffe were described, and the implications of developing a hub airport at that location were discussed under a number of sub-headings grouped under two main headings: "Impacts on road and rail networks", and "Impacts on people and the environment". Under the latter heading, the impacts discussed included those on ecology. It was noted in paragraph 11.16 that:
  135. "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."
  136. Paragraph 11.17 discussed the importance of the SPA, and paragraph 11.18 said:
  137. "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."
  138. A footnote to paragraph 11.18 stated "It is intended that the final report of this further work will be published during the extended consultation period". The report "Study on safety risks from birds and safety measures around Cliffe Marshes" was published on the 7th April 2003 ('The Bird Strike Report'). It is a lengthy document. The concluding paragraph in the executive summary said:
  139. "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."
  140. The White Paper dealt with Cliffe as follows:
  141. "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."
  142. The London Boroughs do not challenge these reasons for rejecting Cliffe, and do not advance Cliffe as the solution to Heathrow's problems. Their complaint is that following receipt of The Bird Strike Report it should have been clear to the Defendant that there was an obvious and fatal flaw in the Cliffe proposal. Yet the consultation process continued with Cliffe being presented as the only realistic option for a new hub airport and with members of the public left under the misapprehension that it did not suffer from a fatal flaw.
  143. In my view, just as it was foreseeable that in the light of the responses to the second Consultation Document the Government would decide not to proceed with a new purpose-built hub airport, so it was foreseeable that the Government would decide that Cliffe should not be supported, not least because of the ecological concerns set out in paragraphs 11.16 – 11.18 of the Consultation Document, and in the light of the further work contained in The Bird Strike Report.
  144. The decision not to support Cliffe for reasons which were clearly foreshadowed in the Consultation Document cannot sensibly be described as a change in the landscape. The implication of the London Boroughs' complaint under this head would appear to be that some other 'radical alternative' should have been considered. It would appear that the London Boroughs have in mind certain alternative proposals for new hub airports in the Thames Estuary which were put forward during the consultation process and appraised by the DfT's consultants.
  145. Under the heading 'Alternative Proposals', paragraph 11.106 of the White Paper stated:
  146. "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".
  147. A list of proposals was set out. So far as is relevant for present purposes, those proposals included:
  148. Paragraph 11.108 stated that in reaching its view on the merits of these alternative proposals, the Government's assessment had been informed by two broad considerations. The second of these considerations was as follows:
  149. "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."
  150. It had been explained in Annex B to the Consultation Document that:
  151. "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)
  152. I will deal with the Claimants' challenge on the ground of commercial viability later in this judgement. At this stage, I merely observe that the Government's reluctance to provide "substantial financial support" for the development of a new hub airport was entirely foreseeable in the light of what had been said in Annex B to the Consultation Document. Paragraph 4.36 of the White Paper repeated this approach:
  153. "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."
  154. Subject to their submissions as to fairness, the Claimants accept that a decision as to whether "substantial financial support" should be provided by the Government is very firmly at the extreme policy / economic judgement end of the spectrum.
  155. The White Paper considered the Thames Estuary proposals in paragraphs 11.109 – 11.116:
  156. "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:
    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."
  157. Although the London Boroughs contended that some of the issues identified in 11.110 were not common to all the Thames Estuary proposals, because they were not all for offshore, as opposed to coastal, sites, they did not contend that it was unlawful for the Defendant to reject the various proposals in the Thames Estuary for the specific reasons set out in paragraphs 11.111 – 11.114.
  158. Of greater significance, they did not suggest that the Defendant could not reasonably have reached the conclusion set out in 11.116, that none of the proposals was "clearly viable within the timescale concerned". In so far as there is any force in their objections to the proposed new runway at Stansted on the ground of 'commercial viability' those objections would apply with even greater force to the Thames Estuary alternatives. The London Boroughs have not challenged Mr Fawcett's evidence that, whatever the position may be as to the commercial viability of Stansted,
  159. "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…"
  160. At one point in his submissions Mr Smith contended that new non-hub airport options had not been sufficiently considered, but that submission is academic since all of the Thames Estuary alternatives were promoted as new hub airports. In simple terms, a new non-hub airport, even if viable, would not have offered sufficient additional capacity to effect "The Radical Change". Since the Defendant concluded that there was not a strong case for attempting to create a second hub airport in the South East, whether or not additional capacity is created at Heathrow (11.17), no practical purpose would have been served by requiring further consultation on this issue, even if rejection of the 'Radical Alternative' had not been a foreseeable response to the second Consultation Document.
  161. (3) The Seeding Assumptions

  162. This issue is also linked to issues (1) and (2) above. The London Boroughs contend that in the Consultation Document it was anticipated that 'seeding' would play an important part in any development of either Stansted or Cliffe as a hub airport. Paragraph 15.12 of the Consultation Document said this:
  163. "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."
  164. Paragraph 9.10 said:
  165. "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."
  166. Paragraph 11.6 said:
  167. "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."
  168. The London Boroughs submit that the Defendant's approach to seeding changed fundamentally in the White Paper and that no explanation was given for the change. Again, this point is academic. Since the Government has decided that there is to be no new hub airport it follows that there will be no need to seed such an airport. In any event, the explanation for the change in the Defendant's position is to be found in a document which is referred to in the White Paper.
  169. Annex A to the White Paper discussed UK air travel forecasts up to 2030. The introduction stated that the DETR's document "Air Traffic Forecasts for the United Kingdom 2000" May 2000, presented the national forecasts for the future demand for air travel, by passenger numbers, at UK airports as a whole between 1998 and 2020. It was explained that the estimates were based on unconstrained airport and air-space capacity, and included United Kingdom and foreign passengers broken down into business and leisure services, long-haul, short-haul and 'no frills' carriers (NFCs). Annex A also referred to the DfT's air passenger forecasting model. This is an airport allocation model which is used to forecast how air passengers might make use of different amounts of new capacity at different airports around the United Kingdom.
  170. Paragraph 22 of Annex A explained that the second Consultation Document had used a version of the DfT model which kept to forecasts for NFCs in line with "Air Traffic Forecasts for the United Kingdom 2000". Paragraphs 23 and 24 brought the reader of the White Paper up to date:
  171. "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:
  172. The Conclusion in Annex A referred to the fact that "the NFC short-haul market has experienced continued growth".
  173. Although dated December 2003, the more recent version of the DfT's air passenger forecasting model was published in February 2004 under the title 'Passenger Forecasts – Additional Analysis'. Mr Fawcett explained in his evidence that it had been hoped to publish all of the supporting documentation contemporaneously with the White Paper, but because of the sheer number and weight of the documents, some of them had to be published in the months following publication of the White Paper in December 2003.
  174. The 'Additional Analysis' expanded on the information available in Annex A of the White Paper. Under the heading 'Potential interactions between Stansted and Heathrow', paragraphs 6.43 and 6.44 explained:
  175. "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."
  176. Seeding would still be required if it was proposed to develop a new hub airport (see the final bullet point in paragraph 11.110 of the White Paper). Paragraph 9.4 of the Consultation Document had said that options for one, two and three extra runways were proposed at Stansted. It added "For the larger options it is assumed that the role of the airport would change", i.e. to a hub airport. The White Paper does not propose that Stansted shall be developed as a hub airport. Thus the only material change for present purposes is that seeding is no longer a pre-condition for the development of a new runway at Stansted as the first additional runway in the South East. This change was referred to in a footnote to paragraph 11.27 of the White Paper. Having stated that it was expected that there would be strong demand for additional capacity at Stansted, and stated that "traffic would therefore grow rapidly, and the new runway would generate substantial net benefits to the national economy", the footnote explained that:
  177. "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".
  178. Subject to the Claimants' commercial viability objection (see below), the conclusion that seeding was no longer required for a non-hub airport development at Stansted could not reasonably be described as a fundamental change as between the Consultation Document and the White Paper. The reason for the change is explained in the footnote and in the additional analysis referred to in Annex A to the White Paper.
  179. I accept Mr Drabble's submission that it was reasonable for the Defendant to take into account up-to-date data such as that contained in the Additi