Judicial Review Judgment on Aviation White Paper ‘Setback’ for Government

White Paper, ‘once the jewel in the Government’s crown’, now ‘limping along like a battered old ram’.

  • Stansted plans thrown into confusion

  • Major re-think required at Luton

  • “Full Consultation” required on mixed-mode at Heathrow

  • Department for Transport officials accused of telling “half-truths”

The Government’s much-criticised Aviation White Paper received a further setback in the High Court today when Mr Justice Sullivan ruled that key aspects of it were not lawful (1). The judge concluded that the White Paper should not have specified the site of the second runway at Stansted (2). He also found that it was not lawful for the White Paper to propose an extension to the runway at Luton without any consultation (3).

The judge ruled that, while it was lawful for the White Paper to consider the end of runway alternation at Heathrow, any move to introduce ‘mixed-mode’ operations would require “full consultation” (4).

The judgment accuses the Department for Transport of being less than open during the consultation leading up to the White Paper. It accuses Mike Fawcett, the Department for Transport official in charge of producing the White Paper, of telling ‘half-truths’ over the financing of Stansted Airport (5).

John Stewart, Chair of HACAN ClearSkies, representing residents under the Heathrow flight path, said, “This judgment represents a setback for the Government. Although the judge has not overturned the White Paper, the Department for Transport will struggle to put a positive spin on its findings. Two of its key proposals – at Stansted and Luton – have been knocked back. The 30 Year White Paper was meant to be the jewel in the Government’s aviation crown. Instead it is limping along like a battered old ram.”

HACAN ‘confident’

Stewart added, “At Heathrow we were hoping that the judge would rule the introduction of mixed-mode to be unlawful, but we are pleased to see that he has called for full consultation on any proposals the Government will come up with. Such is the opposition to mixed-mode that we are confident we will defeat any proposals the Government comes up with.”

The judgment also confirmed that any additional runway at Heathrow would be a short runway and that a 6th terminal would be required to cater for a 3rd runway.

Richard Buxton, solicitor representing the London Boroughs and campaign groups, said he felt “upbeat” about the decision. “No-one has ever challenged a White Paper before. For us and our co-consortium this was the ‘mother of all challenges’. It will be hard for the government to get away with a third runway at Heathrow without a huge fight, not to mention any plans to introduce mixed mode to make up for the shortfall in capacity while a 3rd runway is still being planned. In fact I think the Stansted and Luton decisions today will mean the need to look again at the whole question of runway provision in the South East in the round”.

Notes for Editors

  1. Mr Justice Sullivan handed down his judgment on the Judicial Review of the White Paper on Friday 18th February. The challenge made history. It was the first time ever that the courts had allowed a Judicial Review of any government white paper. The Government was challenged on its Aviation 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 was also heard by the court. A third challenge, brought by housing developers near Gatwick Airport, was heard by the court, but dismissed. A Judicial Review can only challenge specific shortcomings in the decision-making process. It cannot challenge the contents of the White Paper. The Aviation White Paper was published on the 16th December 2003.

  2. The White Paper not only suggested that a second runway be built at Stansted, but it also specified the site of the runway. This judgment states that it was unlawful to do the latter. This will have the effect of throwing BAA’s plans into confusion. In developing their plans for a second runway at Stansted, BAA had spent a lot of money working up plans for a particular site.

  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 argued, people did not have the opportunity to comment on the proposal that emerged. The judged backed the applicants.

  4. 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 argued that there was no indication in the consultation that ending runway alternation and introducing ‘mixed-mode’ 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. The judge said it was lawful for the Government to conclude in the Aviation White Paper that ‘mixed-mode’ could be an alternative to a 3rd runway. But he went on to say that the introduction of ‘mixed-mode’ would be “significant” and would require “full public consultation”.

  5. 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 had stated in the White Paper that a second Stansted runway should be built by 2011 or 2012. The judge ruled that the Government had not acted unlawfully in dealing with the commercial viability argument, but strongly criticised Department for Transport officials for telling “half-truths” on the matter.

For further information:

John Stewart on 020 7737 6641 or 07957 385650

Richard Buxton – solicitor – 01223 328933