‘Unlawful’ behaviour prompts Heathrow Hub to seek review of decision for expansion

Lawyers acting for Heathrow Hub, the independent proposal for expanding Heathrow Airport via an extension to the Northern Runway (ENR), have filed papers at the High Court in London, seeking permission to Judicially Review the decision by Secretary of State for Transport, Chris Grayling, to designate the National Policy Statement which gives approval to Heathrow Airport Ltd’s North West Runway plan (NWR).

It is Heathrow Hub’s belief that the process run by the Department for Transport, which commenced when it set up the Airports Commission in 2013 and culminated in the National Policy Statement being placed before Parliament was flawed. As a result, Mr Grayling has selected the most expensive, complex, disruptive expansion plan which, among other things, is believed will unnecessarily cause a substantial rise in fees for passengers and airlines.

In the request for Judicial Review, under Section 13 the Planning Act 2008, the Secretary of State is the Defendant and Heathrow Airport Ltd is also added as an Interested Party.

Heathrow Hub Ltd and its sister company Runway Innovations Ltd are seeking permission for Judicial Review on five grounds:

• The Secretary of State acted unlawfully in making it an effective precondition of selecting the Heathrow Hub’s ENR scheme that the Heathrow Airport guarantee that it would implement the scheme. This effectively gave the Heathrow Airport Ltd, which was a competitor to the ENR Scheme, a veto over the Heathrow Hub’s proposal. It was unlawful for the Secretary of State, under Article 106 of the Treaty on the Functioning of the European Union, read in conjunction with Article 102, to impose such a requirement or condition;
• In rejecting the Heathrow Hubs’ proposal for the ENR scheme, the Secretary of State acted in breach of the Heathrow Hubs’ legitimate expectation that the Secretary of State would not reject the ENR scheme relying (solely or in part) on the Heathrow Airport Ltd’s failure to give a guarantee that it would implement the ENR scheme if the Secretary of State found it to be the most suitable scheme;
• In accepting the Heathrow Airport Ltd’s North West Runway (“NWR”) scheme and rejecting the ENR scheme, the Secretary of State had regard to an immaterial consideration, namely his factually incorrect assumption that the NWR scheme provided greater capacity for air traffic movements (“ATMs”) and more respite (pauses for local residents from noise exposure), and/or failed to have regard to a material consideration, namely the evidence which demonstrated that the ENR scheme provided for at least the same capacity in terms of ATMs as the NWR scheme and that the NWR scheme could not in practice deliver the levels of respite attributed to it;
• The Secretary of State failed to provide any or any adequate and/or intelligible reasons for its assertion in the Airports NPS that the NWR scheme provided greater capacity for ATMs and more respite than the ENR scheme;
• In basing his decision to reject the ENR scheme partly on concerns relating to its safety and the implications of this for deliverability, the Secretary of State acted unfairly in that he failed to provide any or any intelligible details or explanation of what the safety concerns were or what those concerns were based upon. He also acted contrary to the Heathrow Hubs’ legitimate expectation that he would, before relying on a particular matter for rejecting their scheme, bring that matter to their attention and give them a reasonable opportunity to respond.

Heathrow Hub’s legal advisers are DAC Beachcroft LLP, Martin Kingston QC and Satnam Choongh of No 5 Chambers as well as Robert O’Donoghue QC and Emma Mockford of Brick Court Chambers.