Double trouble for Government on aviation

High Court, Monday 13th December: Judicial Review of Aviation White Paper
High Court, Tuesday 14th December: Judicial Review Night Flight Consultation

The Government is being challenged on two major planks of its aviation policy. On Monday 13th December it faces a Judicial Review of its Aviation White Paper in the High Court in London. On the next day, at the same venue, a Judicial Review of its recent consultation on night flights will take place (1).

The challenge on the White Paper will make history. It is the first time ever that the courts have allowed a Judicial Review of any government white paper. The Government is being challenged on its White Paper by airport campaign groups representing communities around Stansted, Luton and Heathrow and by the London boroughs of Wandsworth and Hillingdon. A separate challenge to the White Paper by Herts and North Essex will also be heard by the court. A third challenge, brought by two businessmen near Gatwick Airport, will be heard by the court after Christmas. A final judgement is expected by mid-February.

The night flight challenge is being brought by the London boroughs of Wandsworth and Richmond. A decision on this case is expected first.

A Judicial Review can only challenge specific shortcomings in the decision-making process. It cannot challenge the contents of the White Paper.

The High Court challenge on the Aviation White Paper will highlight four key flaws:

  • the consultation document leading up to the White Paper did not make clear that the ending of runway alternation at Heathrow could be a short-term alternative to a third runway (2);

  • the consultation document failed to give people the opportunity of commenting on the proposal, favoured in the White Paper, of going for an extended runway at Luton (3);

  • the White Paper ignores the absence of a commercial justification for a second Stansted runway, contrary to the Government’s own ground-rules for the consultation (4).

  • the Government failed to provide the public with information about alternative proposals for new airports at Thames Reach and on the Isle of Sheppey and failed to give proper consideration to those options (5);

The key grounds for the challenge on night flights are:

  • the recent consultation document (6) on night flights made no mention of the fact that the Government may abolish the limit on the number of flights using Heathrow, Stansted and Gatwick at night despite the fact that it was clear in the Aviation White Paper that the Government would seek legislation to give it the powers to do so;

  • the consultation document did not deal with the fact that some of the planes using the airports at night are actually noisier than the DfT’s computer-generated measurements show.

John Stewart, Chair of HACAN ClearSkies, said, “These challenges spell double trouble for the Government. Almost exactly a year ago (7) the Government published its 30 year Aviation White Paper with much fanfare. It hoped that would be the end of the debate and it could proceed with its plans for a massive expansion of aviation. Yet, a year later the protesters are still here…..and stronger than ever. Our message is clear: we stand united against both the Government’s proposals for airport expansion and night flights.”

Notes for Editors:

  1. Both cases will take place at the High Court in the Strand. Both cases are expected to start at 10.30am (but the courts do not give final confirmation until the day before). There will be an opportunity on both days to interview members of the protest groups and the local authorities outside the High Court before the cases start.

  2. Runway alternation means that people living in West London within about 8 miles of Heathrow only get planes landing over the head for half the day. Planes switch runways at 3pm. The applicants are arguing that there was no indication in the consultation that runway alternation was in any way an alternative to a 3rd runway. Yet the White Paper, which put the proposal for a 3rd runway on the back-burner, contained the proposal that runway alternation could be ended at Heathrow.

  3. The consultation document contained two options for expansion of Luton Airport: the construction of a replacement southern runway; and a new runway on a different alignment. It did not include details of plans to extend the current runway, the proposal that emerged in the White Paper. Therefore, the applicants argue, people did not have the opportunity to comment on the proposal that emerged.

  4. The consultation documents made it clear that commercial viability was a “hurdle which must be passed for new and existing airport sites”. BAA advised the Government that a second Stansted runway would only be commercially viable if it could be cross-subsidised by Heathrow and Gatwick revenues but the regulator (the CAA) ruled against the option of cross-subsidisation by BAA during the consultation process. Despite this clear impasse, the Government has stated in the White Paper that a second Stansted runway should be built by 2011 or 2012.

  5. The applicants argue that the Government had information about the viability of new airports at Thames Reach and the Isle of Sheppey that it did not set out in its consultation document. Therefore, the applicants argue, people were not in a position to make a proper assessment of these options when responding to the consultation. The process was at fault. The fact that the applicants have included this point in their challenge does not mean they favour building an airport at Thames Reach or Sheppey.

  6. Every 5/6 years the Government agrees with the airlines on a night flight regime for Heathrow, Stansted and Gatwick. The current agreement runs out in October 2005. The Government is consulting on a new regime in two parts. Consultation on the first consultation paper ended in October. This is the consultation paper that is the subject of the Judicial Review. The Department for Transport plans to publish a second consultation paper (containing more detailed proposals) in January, but that will depend on the outcome of the Judicial Review.

  7. The Aviation White Paper was published on the 16th December 2003.

For further information contact:

John Stewart on 0207 737 6641 or 07957 385650 (note on Wednesday 8th he is in Scotland and only contactable on the mobile).

Richard Buxton — solicitor in both legal challenges — 01223 328933

Steve Mayner, Wandsworth Council — 0208 871 7560 or 07860 481368