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Jul 22, 2019

Heathrow Hub Extended Runway consortium granted permission to appeal

Today’s decision grants Heathrow Hub the right to appeal in the Court of Appeal, with proceedings to start on the 21st October 2019. In its decision, the Court noted the, “considerable importance of the issue raised,” and “accepted the applicants’ grounds of appeal are properly arguable.”

Jock Lowe, director, Heathrow Hub said: “We are delighted to have been granted permission to appeal. We didn’t agree with the previous Judgement handed down on the 1st May, which was legally flawed, at odds with the evidence the court itself heard and gave us strong grounds to appeal.

“We continue to believe that the Department for Transport bungled the decision-making process for Heathrow expansion. Our Extended Runway proposal is cheaper, quieter, simpler and greener to build than Heathrow’s North West Runway, which is bedevilled with complexity, increasingly expensive and incompatible with the new net zero carbon by 2050 target. Phased construction has always been a critical element of our proposal, leaving the government and regulators in control of environmental, noise and capacity levels.

“Despite the ongoing legal proceedings, an Extended Runway could still be operational much sooner than Heathrow Airport Ltd’s North West Runway scheme.”

Legal Background

On 1st May the High Court refused permission to proceed and/or refused the application of the various grounds we submitted for Judicial Review of the Secretary of State’s 2018 decision to designate the Airports National Policy Statement.

Our application for permission to appeal is based on the following grounds:

Distortion of competition – request in August 2016 by the Secretary of State to Heathrow Hub to obtain ‘a guarantee’ from Heathrow Airport Ltd that it would build the extended runway

The 1st May High Court Judgement ignored the legal position, that a distortion of competition had already arisen prior to the Secretary of State Chris Grayling’s initial decision to give preference to the North West Runway scheme announced to Parliament in October 2016. It is Heathrow Hub’s contention that the existing market structure was already distorted in favour of Heathrow Airport Ltd by, “one competitor being potentially able to affect a competitor’s offering in the market.” Furthermore, Article 106(1) of the Treaty of the Functioning of the European Union (TFEU) requires the State to guarantee equality of opportunity. Asking one competitor to guarantee or assure it would implement a competing scheme constitutes an infringement of the Article 106(1) TFEU.

The reasoning of the Secretary of State
The Court failed to take into account the unlawfulness of the Secretary of State’s reason for his decision and instead sought to substitute the reason with its own reason. The Secretary of State repeatedly referred in his evidence to the fact that he had had regard for the lack of a guarantee from Heathrow Airport Ltd as part of his decision-making process. The Court chose to ignore this, found that the guarantee was not a factor at all and then re-characterised it as regard for the “objective merits of the scheme,” as opposed to recognising the repeated admissions by the Secretary of State regarding the importance of the lack of a guarantee as a factor. Parliamentary Privilege
The Court deprived Heathrow Hub of its ability to rely on evidence that was central to its case by declining to make a finding on the admissibility of its evidence under Article 9 of the Bill of Rights. This error was then compounded by the fact that the court did have regard to the disputed material, but in a partial manner that prejudiced Heathrow Hub. The Secretary of State twice expressed to Parliament his consideration of the lack of a guarantee and its importance, yet the Court found that the Minister “did not mean what he said,” thereby questioning the truthfulness of what the Minister said in Parliament.

Legitimate expectation
The Court erred in finding that Heathrow Hub had no legitimate expectation that the Secretary of State would not reject the Extended Runway scheme relying (solely or in part) on Heathrow Airport Ltd's failure to give a guarantee that it would implement the Extended Runway scheme if the Secretary of State found it to be the most suitable scheme; and that the Secretary of State could resile from any such expectation. The Court did not set out the legal test of overriding public interest or acknowledge that the burden of discharging it lay with the Secretary of State. Furthermore, it did not allow Heathrow Hub to address the Court on this matter resulting in a clear error of law. The role of the Court in a judicial review is to review the exercise of discretion by the decision-maker, not to exercise the discretion itself.